Lewis v. State ( 2024 )

Wallace D. Lewis v. State of Maryland, No. 614, Sept. Term 2023. Opinion by Eyler,
Deborah S., J.
FIRST-DEGREE ASSAULT – BATTERY TYPE – INTENT TO INFLICT
SERIOUS BODILY INJURY – CRIME CANNOT BE COMMITTED WITH MENS
REA OF RECKLESSNESS – JURY INSTRUCTION ALLOWING FINDING OF
MENS REA OF RECKLESSNESS WAS LEGALLY INCORRECT – ERROR WAS
NOT HARMLESS BEYOND A REASONABLE DOUBT.
The appellant stabbed the victim, seriously injuring him. He was charged with first-degree
assault only. The evidence at trial included portions of a video from a camera on an exterior
wall near the location of the stabbing. A slow-motion version of one such portion was
moved into evidence over objection. Immediately after the stabbing, the appellant and his
wife drove away from the scene. They did not return when contacted by the wife’s daughter
and asked to do so and did not respond to phone calls from the police. A jury convicted the
appellant of first-degree assault. On appeal he argued that the jury instruction on first-
degree assault was legally incorrect because it allowed for a finding of guilt based on a
mens rea of recklessness. He also argued that the court abused its discretion in admitting
the slow-motion video, in giving an instruction on flight, in denying an instruction on
mutual affray, and in prohibiting evidence that one of the police officers on the scene did
not want to accompany the appellant in the ambulance because he might punch the
appellant.
Held: Judgment vacated and case remanded for further proceedings. The trial court
abused its discretion by giving a legally erroneous jury instruction. The appellant was
charged with the battery form of assault, elevated to first-degree assault by the intent to
cause serious physical injury. That crime requires proof of specific intent and cannot be
committed unintentionally, that is, with the mens rea of recklessness. The instruction as
worded would permit a conviction upon a finding of recklessness only. The State confessed
error but argued harmlessness because, although one element in the instruction would allow
a finding of guilt based on recklessness, another element required a finding of intent. The
Court held that this internal inconsistency created a confusing ambiguity. Jurors could not
be expected to discern which part of the instruction was correct and which was incorrect.
The State further argued that, in some circumstances, the same inconsistent language could
be present in the combined instruction for first- and second-degree assault when both are
charged, and therefore the error was harmless. The Court held that, at most, this might be
a reason to revise the combined instruction. It does not show that, for a charge of first-
degree assault, battery modality with intent to cause serious physical injury, a jury
instruction permitting a finding of guilt on a mens rea of recklessness was harmless beyond
a reasonable doubt.
The Court addressed the remaining issues on appeal for guidance on remand. The trial
court did not abuse its discretion by admitting a slow-motion portion of a video that already
had been admitted in its original form without objection. The evidence at trial supported
the giving of an instruction on flight and did not support an instruction on mutual affray,
which was not generated by the evidence and, as stated, was legally correct. Finally, the
court did not abuse its discretion or violate the appellant’s right to confrontation by not
allowing irrelevant evidence that a police officer on the scene did not want to ride in the
ambulance with the appellant because he might punch the appellant.
Circuit Court for Montgomery County
Case No: C-15-CR-22-000131
REPORTED
IN THE APPELLATE COURT
OF MARYLAND
No. 614
September Term, 2023
______________________________________
WALLACE D. LEWIS
v.
STATE OF MARYLAND
______________________________________
Wells, C.J.,
Leahy,
Eyler, Deborah S.
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Eyler, Deborah S., J.
______________________________________
Filed: November 6, 2024
* Tang, Rosalyn, J. did not participate in the
Pursuant to the Maryland Uniform Electronic Legal
Court’s decision to designate this opinion for
Materials Act (§§ 10-1601 et seq. of the State publication pursuant to Md. Rule 8-605.1.
Government Article) this document is authentic.
2024.11.08
15:48:30 -05'00'
Gregory Hilton, Clerk
A jury in the Circuit Court for Montgomery County convicted Wallace D. Lewis,
the appellant, of first-degree assault. The court sentenced him to twenty-five years’
imprisonment, with all but fifteen years suspended. He noted this timely appeal, presenting
five questions, which we have combined, reordered, and modified:
I. Did the trial court abuse its discretion by:
(a) including in the jury instruction on first-degree assault language
stating that a finding of guilt could be based on a reckless act?
(b) giving a jury instruction on flight?
(c) denying a requested jury instruction on mutual affray as a defense
to a charge of assault?
II. Did the trial court abuse its discretion by admitting in evidence a
modified surveillance video?
III. Did the trial court violate the appellant’s due process right to present
a defense by restricting cross-examination and excluding a defense
witness?
We answer “Yes” to question I.(a) and on that basis vacate the conviction and
remand for further proceedings not inconsistent with this opinion. Because the remaining
issues may arise on remand, we shall address them as well.
FACTS AND PROCEEDINGS1
This case arises from the stabbing of Aaron Davis on May 15, 2020, outside 8609
Flower Avenue, in Takoma Park. Mr. Davis was living in an apartment there with his
child, P., P.’s mother Shivalla Jackson,2 Ms. Jackson’s eight-year-old daughter, K., and his
1
Our recitation of facts is based on the evidence adduced at trial.
2
Shivalla Jackson’s first name is spelled in various ways in the record.
mother and father. K.’s father is Charles Wilson; Kitty Watson is Mr. Wilson’s mother;3
and the appellant is Ms. Watson’s husband.
On the day in question, Mr. Wilson asked Ms. Watson to pick K. up from the Flower
Avenue address.4 Neither Ms. Watson nor the appellant had ever been there before.
Mr. Davis testified that in the early afternoon, he was outside walking home when,
to his surprise, he saw Ms. Watson standing on his front stoop and the appellant “coming
after.” Mr. Davis walked up, “grabbed” P., and took her to the park. He and the appellant
“exchanged words.” The front yard of the Flower Avenue address is fenced, with a gate.
The appellant followed him outside the gate, telling him to put the girl down and “come
holler” at him. Mr. Davis left with P. but “felt unease[.]”
Less than thirty minutes later, Mr. Davis returned home with P. Ms. Watson and
the appellant still were there. Mr. Davis did not know why, and “became agitated[.]” He,
Ms. Watson, and the appellant engaged in a “verbal altercation” that lasted “a few minutes
or so.” The appellant suggested that K. was not being cared for properly and Mr. Davis
responded that the appellant had no reason to be there and “don’t worry about what’s going
on in this household. These kids are taken care of.” Mr. Davis knew that Ms. Watson had
3
Ms. Watson was charged with first-degree assault and conspiracy to commit first-
degree assault in connection with the underlying events in this case. The jury acquitted her
on both counts.
4
Mr. Wilson testified that he was supposed to pick up K., but Ms. Jackson called
him to say there had been a domestic dispute between her and Mr. Davis that morning. For
that reason, Mr. Wilson asked his mother to pick up K. In his testimony, Mr. Davis denied
that there was a domestic dispute, explaining that he had called the police because Ms.
Jackson was not letting him take P. to the park, but the police left shortly after arriving,
saying it was a “civil matter.”
2
sent $20 for K. and said to her, “these kids need more than $20.” At that point, Ms. Watson
and the appellant “grew hostile and irate[,]” became “[m]ore violent,” and there was “more
yelling.” Mr. Davis “screamed back at them” and told them to get off his property. They
did so and waited across the street. Mr. Davis went inside and learned that Ms. Watson
and the appellant were there to pick up K., that K. already was in their car, and that Ms.
Jackson was outside by that car.
Mr. Davis went back outside. The appellant met him at the front gate. They were
face to face and the appellant had his hands behind his back. Then, one of the appellant’s
hands came “overhand” to the top of Mr. Davis’s earlobe, making contact, which Mr. Davis
said felt like a slap on his face. Mr. Davis “struck back” with a “right punch” that caused
the appellant to fall into the street on his hands and knees. Mr. Davis felt the appellant
grab his legs with both arms. Mr. Davis reacted by hugging him, hoping that would loosen
his grip. He heard the appellant say, “baby, get the knife” and saw “something black
shaped as a knife on the ground[.]” On the periphery, he saw Ms. Watson run for his left
side. As he continued to punch the appellant, he felt two punches to his back, and then felt
his “arms give up.”
Realizing it was “two against one[,]” Mr. Davis tried to run away. He saw blood
but did not know where it was coming from. He ran inside and in the bathroom mirror saw
that his “face [was] cut open and a nerve exposed.” Until then, he did not know that his
face had been cut. He returned outside and was going to run to Washington Adventist
Hospital, a few blocks away, but his mother screamed out the window that the hospital had
closed. He called 911 for an ambulance because he thought he might bleed out. The
3
recording of the call was played for the jury. In it, Mr. Davis said he had been attacked by
two people who “just fled off in a car.” The ambulance arrived and transported him to the
Washington Hospital Center in the District of Columbia, where he underwent surgery. At
the time of the trial, Mr. Davis had scars, was unable to “smile hard” or “laugh really very
hard” because of nerve pain, his right arm was “very easily fatigued[,]” and he could not
hold that arm up for a sustained period of time.
Elizabeth Lewallen lived across the street at 8608 Flower Avenue. On the day in
question, she was getting ready to take a nap at about 1 or 1:30 p.m., when she heard a
commotion and looked out her window. She saw a “bunch of people in the yard across the
street” talking in loud voices and arguing. She saw a young man she recognized as
someone who lived in the house,5 an older man dressed in a maroon “Washington” shirt,
jeans, sneakers, and a baseball cap, and a woman dressed in blue and white. The older man
(the appellant) and the woman (Ms. Watson) were standing near a parked car and the
younger man (Mr. Davis) was across the street standing outside his fence smoking a
cigarette. They appeared to be arguing “mainly about the little girl[.]” Mr. Davis said
“something to the effect that the young girl was more his than the other man’s because he
raised her from the time she was 6 months old.” Ms. Lewallen did not understand what
the appellant and Ms. Watson said in response, “but it was loud.” The appellant yelled
derogatory, “nasty names” at Mr. Davis.
5
Prior to this incident, Ms. Lewallen did not know Mr. Davis’s name, but she
learned it from the police.
4
Eventually, Mr. Davis said something along the lines of he was not going to go out
into the street and if the appellant wanted to do something to him, he would have to walk
to him. The appellant started walking across the street toward Mr. Davis “with purpose”
and in an “aggressive” manner. The appellant hit Mr. Davis, who pushed him into the
middle of the street. The appellant fell and hit his head and Mr. Davis started punching
him. The appellant moved his hand down to his pocket area, “came up with a knife[,]” and
cut Mr. Davis on his right side. Mr. Davis got up and had “blood pouring down his white
shirt[.]” The appellant got up and went to his car. Ms. Lewallen did not see Ms. Watson
do anything but heard her say to the appellant, “get in the car and let’s go.”
Kitty Watson testified that at about 11 a.m. that day her son called and asked her to
pick up K. She and the appellant drove to the Flower Avenue address and she called Ms.
Jackson to say they were on their way. They arrived a little after 1 p.m. Ms. Jackson came
outside. The two women spoke while the appellant went to buy some cigarettes. At some
point, Mr. Davis entered the yard, picked up P., and left. Ms. Watson described Mr. Davis
as “mean-mugged.”
According to Ms. Watson, when Mr. Davis returned, he said to Ms. Jackson, “I don’t
know why you called this old assed bitch over here. I would smack the shit out of her[.]”
She (Ms. Watson) and Mr. Davis had words and things “got heated[.]” Ms. Watson told
Mr. Davis he was being disrespectful to older people and women. A couple of minutes
later, the appellant returned from the store. Ms. Watson, the appellant, and K. went across
the street to the car and Ms. Jackson followed them. K. got into the back seat of the car
and was watching videos on Ms. Watson’s phone. Eventually, Ms. Jackson went inside
5
the house to get clothing for K. Mr. Davis, who was at the gate, shouted across the street
and the appellant shouted back at him. Mr. Davis yelled that if the appellant needed to say
something, he could come over and say it. Eventually, the appellant walked over and
started talking to Mr. Davis. Ms. Watson could not hear their exact words because they
were “face-to-face with each other[,]” but she described the appellant’s demeanor as
“calm” and “fatherly,” like an “older person going to talk to a younger person” and
“[t]rying to d[e]fuse the situation.” Mr. Davis said, “I don’t know why your old ass is over
here. I will drag your old ass.” The appellant “raised his voice” and the two men started
fighting.
Ms. Watson saw Mr. Davis punch the appellant, causing him to fall back into the
middle of the street. She got in the car with K. She did not see the appellant threaten,
punch, or slap Mr. Davis or take out a knife and cut him. She acknowledged that it was
not unusual for the appellant to be carrying a knife. She did not know whether the knife
used to stab Mr. Davis belonged to the appellant nor did she know who stabbed him. She
did not hear the appellant say, “baby, get the knife.”
Ms. Watson got out of the car when she saw the appellant “trying to walk fast” and
“holding his ribcage.” She walked to the middle of the street, grabbed the appellant, and
helped him to the car. The appellant was hurt and she “saw blood.” They started to drive
to a hospital, but the appellant did not want to go. About ten or fifteen minutes after they
drove away, Ms. Jackson called and asked them to return. Ms. Watson told her she would
return, but didn’t say when. She denied receiving phone calls from the police. She and the
appellant drove home. He went to the hospital a couple of days later.
6
Montgomery County Police Officer Chuck Merriman responded to the scene. He
found Mr. Davis standing in the middle of Flower Avenue, smoking, holding a t-shirt to
the right side of his face, and “completely covered in blood.” There was a laceration from
Mr. Davis’s right ear to just below the right side of his mouth; a puncture wound in Mr.
Davis’s back, about two and one half or three inches below his shoulder; and another
puncture wound under Mr. Davis’s armpit. Montgomery County paramedic James Hedges
testified that one wound in particular was “high-risk” because it was in a “very vascular
area” and it was “very difficult” to control the bleeding. Mr. Davis was transported to
Washington Hospital Center, the nearest trauma center.
Christine Trankiem, M.D., a trauma surgeon, treated Mr. Davis at the hospital. She
testified that Mr. Davis was admitted under a code yellow trauma, which was “the level of
injury for the highest level of trauma activation.” He had a complex facial laceration from
the upper edge of his lip to the front of his ear. It required a multilayered procedure
involving deep stitches and then another layer of skin stitches. He also had a stab slash
wound behind and beneath his right armpit. The most severe wound was located in front
of Mr. Davis’s right armpit, described as his right chest interior axillary injury. It required
an interventional radiologist because the usual steps taken to stop the bleeding did not
work. The procedure to stop the bleeding in the chest was invasive and required doctors
to access that part of Mr. Davis’s body through an artery in his groin.
Montgomery County Police Officer Genesis Molta testified that when she
responded to Mr. Davis’s 911 call, she learned that Ms. Watson and the appellant no longer
were at the scene. She asked Ms. Jackson to call them, which she did. Ms. Jackson left a
7
message for them to return. Thereafter, using different cell phones, Officer Molta called a
phone number she had obtained for Ms. Watson. She left a voice message on one occasion
and called multiple times thereafter, but Ms. Watson never answered the phone.
Montgomery County Police Detective Brandon Patrick testified that he was
dispatched to 8609 Flower Avenue at about 1:50 p.m. on the day of the stabbing. At the
scene, he observed blood in the street, a knife sheath, and a trail of blood leading from the
street into the house at 8609 Flower Avenue.
We shall add facts as they pertain to the issues the appellant has raised.
DISCUSSION
I.
Three of the appellant’s issues concern jury instructions.
In Maryland, a “court may, and at the request of any party shall, instruct the jury as
to the applicable law and the extent to which the instructions are binding.” Md. Rule
4-325(c). A trial court’s decision to give a jury instruction or not to give a jury instruction
is reviewed for abuse of discretion. Carroll v. State, 428 Md. 679, 689 (2012); Thompson
v. State, 393 Md. 291, 311 (2006). A trial court must give a requested instruction if it is a
correct statement of the law, is generated by the evidence, and is not fairly covered by other
jury instructions given by the court. Thompson, 393 Md. at 302 (citing Md. Rule 4-325(c)
and Ware v. State, 348 Md. 19, 58 (1997)).
“A requested jury instruction is applicable if the evidence is sufficient to permit a
jury to find its factual predicate.” Bazzle v. State, 426 Md. 541, 550 (2012). Whether the
evidence is sufficient in that regard is a question of law for the trial court. Rainey v. State,
8
480 Md. 230, 255 (2022). Thus, we undertake an independent review of whether the
evidence at trial was sufficient to ‘“establish a prima facie case that would allow a jury to
rationally conclude that the evidence supports the application of the legal theory desired.”’
Id. (quoting Bazzle, 426 Md. at 550). We review the evidence in the light most favorable
to the party requesting the instruction. Id. (citing Dykes v. State, 319 Md. 206, 216 (1990)).
The requesting party bears the burden to produce “some evidence” to support the giving of
the requested instruction. Id.(a)
The appellant contends the trial court erred by giving a legally incorrect instruction
on first-degree assault. The State concedes the court erred, but argues that the error was
harmless beyond a reasonable doubt. To address harmless error, we must review the law
on assault and battery and the pattern jury instructions on those crimes formulated by the
Maryland State Bar Association (“MSBA”) Committee on Criminal Pattern Jury
Instructions.
Assault and battery were common law crimes in Maryland until 1996, when
multipurpose assault and battery statutes covering the entire subject matter were enacted,
abrogating the common law. Robinson v. State, 353 Md. 683, 694 (1999). Nevertheless,
the meanings of the statutory crimes “are judicially determined,” so we take guidance from
case law analyzing the common law meanings. See Md. Code (2002, 2021 Repl. Vol.),
§ 3-201(b) of the Criminal Law Article (“CR”) (defining “assault” to encompass “the
crimes of assault, battery, and assault and battery, which retain their judicially determined
meanings”). See also Quansah v. State, 207 Md. App. 636, 646 (2012) (explaining that
9
second-degree assault, a statutory crime, encompasses the common law crimes of assault,
battery, and assault and battery).
The three modalities of assault recognized at common law – intent to frighten,
attempted battery, and battery – each constitute statutory assault. Watts v. State, 457 Md.
419, 439 (2018). In the case at bar, we are dealing with the battery modality of assault.
CR § 3-203 prohibits second-degree assault. The battery variety of second-degree
assault “is committed by causing offensive physical contact with another person.” Nicolas
v. State, 426 Md. 385, 403 (2012).6 A battery can be an intentional or an unintentional
crime. Elias v. State, 339 Md. 169, 183 (1995). An intentional battery is a specific intent
crime: the defendant must have committed the act with the specific intent to injure the
victim, even if the injury intended is slight. Lamb v. State, 93 Md. App. 422, 455 (1992).
See Elias, 339 Md. at 183-84 (explaining that at common law, an intentional battery
conviction required proof that the defendant “intended to cause harmful or offensive
6
In Williams v. State, the Supreme Court of Maryland explained,
[When battery was] a common law crime, [it] was . . . defined as the
“unlawful beating of another[.]” Kellum v. State, 223 Md. 80, 85 (1960). We
have also defined common law battery as the “unlawful application of force
to the person of another[,]” Snowden v. State, 321 Md. 612, 617 (1991), and
as “‘any unlawful force used against the person of another, no matter how
slight[.]’” Edmund v. State, 398 Md. 562, 571 (2007) (quoting State v.
Duckett, 306 Md. 503, 510 (1986) (internal citations omitted). See also Lamb
v. State, 93 Md. App. 422, 448 (1992) (quoting R. Perkins, Criminal Law,
152-153 (3d ed. 1982)[)] (defining battery as “an application of force to the
person of another ‘by the aggressor himself, or by some substance which he
puts in motion.’”).
457 Md. 551, 567 (2018) (italicized portions in original).
10
contact against a person without that person’s consent and without legal justification”). An
unintentional battery, which is not a specific intent crime, only requires the defendant to
have had the general intent to commit the criminally negligent act without any thought as
to the consequences of doing so, i.e., the mens rea of recklessness. Id. at 184. “[W]hether
a defendant’s actions constitute gross criminal negligence/recklessness turns on whether
those actions under all the circumstances amounted to a disregard of the consequences
[that] might ensue to others.” Id. See also Duckworth v. State, 323 Md. 532, 540 (1991).
CR § 3-202 prohibits first-degree assault. The crime requires proof of “all the
elements of assault in the second-degree” and “at least one of the statutory aggravating
factors” spelled out in CR § 3-202(b). Snyder v. State, 210 Md. App. 370, 379, cert. denied,
432 Md. 470 (2013). Those factors are (1) intentionally causing or attempting to cause
serious physical injury to another; (2) using a firearm to assault another; and (3) assaulting
another by intentional strangulation. CR § 3-202(b).
In the case at bar, the appellant was charged with first-degree assault by stabbing
with a knife. He was not charged with second-degree assault. The case not only concerns
the battery modality of assault but also the aggravating factor of intentionally causing a
serious physical injury. This type of first-degree assault requires proof of a specific intent
to inflict serious physical injury, i.e., an intent beyond that required for an intentional
second-degree battery. It necessarily is an intentional assault, as intent to inflict serious
physical injury is an element; therefore, the mens rea of recklessness does not apply and,
if that is the only state of mind proven, is legally insufficient to support a conviction.
11
The Maryland Criminal Pattern Jury Instructions cover second-degree assault
(MPJI-Cr 4:01), first-degree assault when the defendant is charged with both first- and
second-degree assault (MPJI-Cr 4:01.1A), and first-degree assault as a “stand alone”
instruction when only first-degree assault is charged (MPJI-Cr 4:01.1B). The non-stand-
alone instructions divide second- and first-degree assault by the modality: intent to frighten,
attempted battery, and battery.
The second-degree assault instruction for the battery modality states, in relevant
part:
The defendant is charged with the crime of assault. Assault is causing
offensive physical contact to another person. In order to convict the
defendant of assault, the State must prove:
(1) that the defendant caused [offensive physical contact with] [physical
harm to] (name);
(2) that the contact was the result of an intentional or reckless act of the
defendant and was not accidental; and
(3) that the contact was [not consented to by (name)] [not legally justified].
MPJI-Cr 4:01 (emphasis added). Thereafter, the instruction sets forth a definition of
“reckless act.” Thus, as worded, this instruction allows the jury to find an intentional or a
reckless battery.
The first-degree assault instruction that applies when the defendant is charged with
both first- and second-degree assault states, in relevant part:
The defendant is [also] charged with the crime of first degree assault. In
order to convict the defendant of first degree assault, the State must prove
all of the elements of second degree assault and also must prove that:
(1) the defendant used a firearm to commit assault; or
(2) the defendant intended to cause serious physical injury in the
commission of the assault; or
[(3) the defendant intentionally strangled (name)]
12
MPJI-Cr 4:01.1A (emphasis added). Definitions of a “firearm,” “serious physical injury,”
and strangulation follow. The Notes on Use direct the court to give the second-degree
assault instruction immediately prior to this instruction.
Finally, the stand-alone first-degree assault instruction states, with respect to the
battery form of assault, and in relevant part:
The defendant is charged with the crime of first degree assault. Assault
means causing offensive physical contact to another person. In order to
prove that the defendant committed an assault, the State must prove:
(1) that the defendant caused [offensive physical contact with] [physical
harm to] (name);
(2) that the contact was the result of an intentional [or reckless] act of
the defendant and was not accidental;
(3) that the contact was [not consented to by (name)] [not legally justified];
and
(4) that the defendant [used a firearm to commit the assault] [intended to
cause serious physical injury in the commission of the assault]
[committed the assault by strangling].
MPJI-Cr 4:01.1B (emphasis added). In separate brackets that follow, definitions are given
for “reckless act,” a “firearm,” and “serious physical injury.”
The Notes on Use for the stand-alone instruction direct: “Only include the
bracketed language regarding recklessness in element (2) if the battery involves a
firearm.” Id. (emphasis added). The Comment elaborates:
Since first degree assault is an aggravated form of second degree assault
predicated on either intent to cause serious physical injury, use of a firearm,
or intentional strangulation this instruction simply tracks the language of the
second degree instruction with reference to the aggravators. One potentially
confusing consequence of this scheme is that it necessarily must include
the possibility of a “reckless act” causing offensive physical contact or
harm under the element (2) of [the battery portion of the] instruction
. . . . Importantly, reckless physical contact can only constitute a first
degree assault if it involves a firearm–serious-physical-injury type and
strangulation type first degree assaults require specific intent.
13
Id. (italics in original; emphasis otherwise added). By this language, the Notes on Use and
Comment recognize that the two forms of first-degree assault of the battery type that do
not involve using a firearm cannot be committed recklessly.7
In the case at bar, the evidence that the appellant used a knife to cause serious
physical injury to Mr. Davis could not result in a conviction based on a mens rea of
recklessness. The bracketed material pertaining to recklessness thus was not relevant.
The instruction the court gave the jury, however, included the language about
recklessness:
Each defendant is charged with the crime of first degree assault.[8] Assault
means causing offensive physical contact to another person. In order to
prove that each defendant committed a first degree assault the State must
prove one that the defendant caused physical harm to Aaron Davis, two that
the contact was the result of an intentional or reckless act of the defendant
and was not accidental, three that the contact was not consented to by Aaron
Davis or was not legally justified, and four that the defendant intended to
cause serious physical injury in the commission of the assault.
Now, reckless act means conduct that under all circumstances shows
a conscious disregard of the consequences to other people and is a gross
departure from the standard of conduct that a law abiding person would
7
Duckworth v. State, 323 Md. 532 (1991), decided under the common law before
the multipurpose assault and battery statutes were enacted, is an example of a scenario that
would support a conviction for assault in the first degree by battery, committed with the
mens rea of recklessness. The defendant recklessly handled a gun, scaring his girlfriend’s
daughter, who thought he was going to shoot her, and was so grossly negligent in doing so
that the gun went off, shooting the little girl (but not killing her). There was no evidence
that the defendant intended to cause harm to the little girl. The Supreme Court of Maryland
held that he had committed an unintentional, i.e., reckless, battery. Under the present day
first-degree assault statute, that defendant could be convicted of the battery form of assault,
aggravated to first degree by the use of a firearm, but with a reckless state of mind.
8
Ms. Watson also was a defendant, so the court was instructing about two
defendants, not one.
14
observe. Serious physical injury means injury that one creates a substantial
risk of death or two causes serious or permanent or serious and protracted
disfigurement or loss or impairment of the function of any bodily member or
organ. If you find that two parties agreed to mutual combat then the parties
have consented to physical contact using non-excessive force.
(Emphasis added.) The defense objected to the inclusion of the language about
recklessness. The court explained its decision to include that language as follows: “[T]he
jury instruction is a little misleading on that because clearly, if you can be reckless with a
gun, you can be reckless with a knife. It doesn’t have to be intentional. It can be reckless,
so.”
Before this Court, the appellant argues that because no firearm was involved, first-
degree assault could not be committed with the mens rea of recklessness, making it error
for the court to include the word “reckless” in the first paragraph of the instruction and to
recite the definition of reckless act in the second paragraph. He maintains that reversal is
required because the legally erroneous language permitted the jury to find guilt by a lower
degree of culpability than legally required. He asserts that allowing the jury to convict him
based on a standard of recklessness that only applies to an unintended assault, not the
intended assault he was charged with, was prejudicial error.
As noted, the State concedes that the trial court erred by including the language
about recklessness in the instruction. It maintains, however, that taken as a whole, the
instruction accurately communicated the demands of the law. It quotes Carroll, 428 Md.
at 689 (quoting Fleming v. State, 373 Md. 426, 433 (2003)): “‘[R]eversal is not required
where the jury instructions, taken as a whole, sufficiently protect the defendant’s rights and
adequately covered the theory of the defense.’” In essence, the State is arguing
15
harmlessness, which means it must establish, beyond a reasonable doubt, that the trial
court’s error had no effect on the outcome of the case. Dorsey v. State, 276 Md. 638, 648
(1976).
The State reasons as follows on the issue of harmlessness. Notwithstanding the
language about recklessness, the instruction informed the jury that to convict the defendant
the State had to prove that the appellant intended to cause serious physical injury. Thus,
in the State’s words, the instruction “did not allow the jury to convict based on a merely
reckless mens rea[,]” so the recklessness language could not have affected the verdict. The
State points out that when a defendant is charged with both degrees of assault, the jury first
hears the second-degree assault instruction, which includes as a required finding “that the
contact was the result of an intentional or reckless act of the defendant and was not
accidental[,]” and then hears the first-degree assault instruction, which tells them “the State
must prove all of the elements of second degree assault[,]” and must prove “the defendant
intended to cause serious physical injury in the commission of the assault[.]” (Emphases
added.) In this scenario, it is possible for the jury to base a first-degree assault conviction
for a battery not involving a firearm on findings that the contact was the result of a reckless
act of the defendant and that the defendant intended to cause serious physical injury in the
commission of the assault. This, the State argues, is no different from the incorrect first-
degree assault stand-alone instruction the court gave in this case.
While the State’s argument is superficially appealing, we are not convinced. The
stand-alone first-degree assault instruction as given was internally inconsistent and
ambiguous for the exact same reason the Notes on Use and Comment for that instruction
16
emphasize – that only when the assault involved a firearm can a conviction be based on the
mens rea of recklessness. The jury was told via element two that the State must prove that
the contact resulted from an intentional or reckless act of the appellant, and was given a
detailed instruction about what recklessness means, and at the same time was told via
element four that the State had to prove that the defendant intended to cause serious
physical injury in committing the assault. The essence of the State’s argument is that
element two, and its reference to recklessness, became meaningless once element four was
read, and the jurors would have realized that and ignored it and the definition of
recklessness.
If jury instructions are ‘“ambiguous, misleading or confusing’ to jurors, those
instructions will result in reversal and a remand for a new trial.” Smith v. State, 403 Md.
659, 663 (2008) (quoting Battle v. State, 287 Md. 675, 684-85 (1980), in turn quoting
Midgett v. State, 216 Md. 26, 41 (1958)). See also Wintrobe v. Hart, 178 Md. 289, 296
(1940) (“[I]nstructions which are ambiguous, misleading[,] or confusing to jurors can never
be classed as noninjurious.”). We are not willing to assume, as the State asks and to the
detriment of the appellant, that the jury would not have been confused by the dueling
references to recklessness and intentionality, and would have known, despite the internally
inconsistent language, to factor out recklessness as a state of mind on which to base a
finding of guilt.
We note that the prosecutor’s closing and rebuttal arguments also were confusing
and ambiguous. In closing, the prosecutor, commenting upon how the appellant managed
17
to move quickly during the altercation, said: “Well, trust me when this man is motivated
[he] is very quick and very intentional and very reckless.” In rebuttal closing, he said,
[W]e ask you to find the defendant guilty. He certainly caused physical harm
to Aaron Davis. It was an intentional or reckless act.
On the other hand, during parts of his closing the prosecutor referred only to the appellant’s
having intentionally caused harm to Aaron Davis, without mention of recklessness.
Certainly, nothing about the State’s closing would have clarified the ambiguous instruction,
and instead would have created the false impression that a finding of recklessness on the
appellant’s part was sufficient.
The State is correct that, depending upon the type of battery involved and the
underlying facts in evidence, the same ambiguity could result when a defendant is charged
with first- and second-degree assault and the court gives the second-degree assault
instruction immediately followed by the first-degree assault instruction. This is not a
reason for us to deem harmless the ambiguity and inconsistency in the instruction given in
this case. Trial courts are strongly encouraged to use the pattern jury instructions, see
Johnson v. State, 223 Md. App. 128, 152 (2015), and attention should be paid to the Notes
on Use and Comments with respect to when to use, or refrain from using, bracketed
material. Because we cannot say that the error was harmless beyond a reasonable doubt,
we shall vacate the appellant’s conviction and remand for further proceedings.
18
(b)
At trial, the defense objected to the court’s giving an instruction on flight. The
instruction as given stated:
Now, flight of defendant. A person’s flight immediately after the
commission of a crime or after being accused of committing a crime is not
enough by itself to establish guilt, but it is a fact that may be considered by
you as evidence of guilt. Flight under these circumstances may be motivated
by a variety of factors some of which are fully consistent with innocence.
You must first decide whether there is evidence of flight. If you decide there
is evidence of flight then you must decide whether this flight shows a
consciousness of guilt.
Except for the substitution of “person’s” for “defendant’s” in the second sentence, this
instruction is verbatim MPJI-Cr 3:24.
The appellant contends that flight was not generated by the evidence and therefore
the trial court abused its discretion by giving a flight instruction. He argues that the
evidence could not support an inference that he did anything other than depart the scene:
he simply moved from the middle of the street, where he had fallen, to Ms. Watson’s car,
and she merely drove him and K. away because he was injured and she was trying to take
care of him. He maintains this evidence was insufficient to support a finding that he fled,
and therefore to support an inference that he acted with a consciousness of guilt to avoid
apprehension or prosecution. He points out that Mr. Davis had told him and Ms. Watson
to leave and that K. was in the car, and Ms. Watson did not want her to see the altercation
or hear the arguments that were taking place.
In Thompson, 393 Md. at 312, the Supreme Court of Maryland explained:
[F]or an instruction on flight to be given properly, the following four
inferences must reasonably be able to be drawn from the facts of the case as
19
ultimately tried: [(1)] that the behavior of the defendant suggests flight; [(2)]
that the flight suggests a consciousness of guilt; [(3)] that the consciousness
of guilt is related to the crime charged or a closely related crime; and [(4)]
that the consciousness of guilt of the crime charged suggests actual guilt of
the crime charged or a closely related crime.
In the case at bar, the appellant’s focus is on the first inference, that his behavior
suggested flight. He maintains that the evidence showing he simply left the place where
the stabbing happened could not support a finding of flight from which a further inference
of consciousness of guilt could be drawn. The sufficiency of the evidence to show flight,
and therefore to support the giving of the instruction, is a question of law that we determine
de novo. Bazzle, 426 Md. at 550.
In Hoerauf v. State, 178 Md. App. 292 (2008), we explained:
“[E]vidence of flight is defined by two factors: first, that the defendant has
moved from one location to another; second, some additional proof to
suggest that this movement is not simply normal human locomotion.” 22
CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE
§ 5181 (1978 & SUPP. 2007). This additional proof of other than normal
human movement also must reasonably justify an inference that it was done
with a consciousness of guilt and pursuant to an effort to avoid apprehension
or prosecution based on that guilt. In the context of leaving the scene of a
crime, the classic case of flight is where a defendant leaves the scene shortly
after the crime is committed and is running, rather than walking, or is driving
a speeding motor vehicle. On the other hand, merely walking away from the
scene of a crime ordinarily does not constitute flight.
Id. at 323-24 (footnote and citation omitted). In that case, we held the trial court abused
its discretion by giving a flight instruction when the only evidence was that the defendant,
who stood on the sidelines while the crimes were committed, simply walked away.
In the case at bar, the record discloses “some evidence” from which reasonable
jurors could find that the appellant’s departure from the scene constituted flight. The only
20
evidence that Mr. Davis told the appellant and Ms. Watson to leave was that, before the
stabbing, he ordered them off his property and they responded by walking to their car. This
had nothing to do with their ultimate departure from the scene. Ms. Lewallen testified that,
after cutting Mr. Davis with the knife, the appellant got up and went to the car, and Ms.
Watson told him, “get in the car and let’s go.” In his 911 call, Mr. Davis said that two
people were involved in the stabbing and “[t]hey just fled off in a car.” This was his lay
assessment of the manner in which they departed and was not objected to. By the time the
ambulance personnel and police arrived, the appellant and Ms. Watson were gone. When,
in response to Officer Molta’s request, Ms. Jackson called Ms. Watson and asked her to
return, she said she would but did not do so. Nor did Ms. Watson answer the calls Officer
Molta placed from various phone numbers in the days that followed. Even assuming the
appellant suffered some injury, neither he nor Ms. Watson called 911 or the police to report
the incident or seek assistance. Although Ms. Watson testified that she left to take the
appellant to the hospital, he didn’t seek medical care for several days, so he could not have
been seriously wounded.
The record discloses some evidence that, when viewed in the light most favorable
to the State as the proponent of the requested instruction, was legally sufficient to allow
reasonable jurors to find that the appellant didn’t merely depart the scene as one ordinarily
would do, but fled the scene, thus permitting an inference that he did so out of
consciousness of guilt relating to the stabbing of Mr. Davis. To be sure, a reasonable jury
could have found that he did not flee. So long as there was “some evidence” to support the
21
predicate for giving the instruction – flight from the scene – the court did not err in granting
the flight instruction, however.
(c)
Lastly, with respect to jury instructions, the appellant contends the trial court erred
by declining to give a non-pattern instruction on mutual affray, which he maintained would
guide the jury in deciding whether Mr. Davis had consented to the battery. The requested
instruction read:
In determining whether an individual “consents” to an assault, you may
consider whether there exists evidence of mutual combat or mutual affray.
A mutual affray occurs when both parties willingly enter into a fight. In the
case of a mutual affray it does not matter which combatant actually strikes
the first blow. In fact, if both parties intend to fight and are ready to do so,
it may be a mutual affray even if one party did not actually strike any blow.
If you find that Aaron Davis had the intention of engaging in physical
combat with [the appellant], you must find that Aaron Davis consented to the
combat. If you find that Aaron Davis consented to the combat, you must find
[the appellant] not guilty of first-degree assault.
During a bench conference, defense counsel argued that “[m]utual affray is a
defense to assault because it means there was consent.” She asserted that if the jury found
that Mr. Davis agreed to a physical altercation with the appellant, and the degree of force
the appellant used during the mutual altercation was not excessive, the appellant could not
be guilty of assault. Counsel argued, “I think that the jury is entitled to know that mutual
– when two parties agree, I’m going to fight you. You’re going to fight me. We’re going
to have a fight, that is consent.” Counsel acknowledged that mutual affray is a crime in
and of itself, separate from assault, but argued that the “mutual part talks about the consent,
and that consent negates an element of assault.” She pointed out that Ms. Watson testified
22
that Mr. Davis threw the first punch and that Ms. Lewallen testified that Mr. Davis was not
slashed when the appellant first approached him, but only later, after the appellant was on
the ground being punched repeatedly.
The trial judge noted that the first-degree assault instruction already included
language about lack of consent. The court declined to give the requested instruction but
added a sentence to the end of the first-degree assault instruction stating, “[i]f you find that
two parties agreed to mutual combat then the parties have consented to physical contact
using non-excessive force.” Defense counsel excepted to the ruling.
On appeal, the appellant argues that “all of the requirements of Md. Rule 4-325 were
met in that the requested instruction stated the applicable law, was generated by the
evidence, and was not fairly covered by other instructions.” We disagree.
Affray is a common law crime consisting of “the fighting of two or more persons in
some public place to the terror of the people[.]” Hickman v. State, 193 Md. App. 238, 242
(2010) (quotation marks omitted). One of the principal differences between an affray and
a common law assault is that the victim of an affray is the public, not an individual, and its
criminalization is to protect the peace. Id. at 252-53. As a result, the defense of consent is
irrelevant with respect to an affray. An affray does not require the agreement or consent
of the fighting parties.
In Hickman, in discussing a trial court’s decision to acquit a defendant of second-
degree assault but convict him of common law affray, we explained:
The court found that [the defendant] and Gregor “squared off” in the
parking lot, engaged in threats and that [the defendant] hit Gregor twice,
ultimately delivering the blow that caused the victim’s demise. The court
23
likewise found, however, that Gregor entered the parking lot with the
intention of engaging in combat and, thus, consented to the assault. This
“consent” prevented the court from finding [the defendant] guilty of second-
degree assault, although [his] actions satisfied all other elements of the
offense. The court continued, explaining that the defense of consent does not
apply to the common law offense of an affray. Consent, the court observed,
is irrelevant regarding the affray, see State v. Renda, 125 Me. 451, 134 A.
571 (1926); see also 2A C.J.S. Affray, § 8 (stating that “At common law an
affray does not require an agreement or consent of both parties to fight ….”)
and likewise in situations of mutual combat. See 6 Am. Jur. 2d Assault and
Battery, § 53 (citing Hodges v. Schuermann Bldg. & Realty Co., 174 S.W.2d
909 (Mo. Ct. App. 1943); State v. Dunham, 118 Ohio App. 3d 724, 693
N.E.2d 1175 (1st Dist. Hamilton County 1997)). Thus, the trial court, having
determined that [the defendant] had struck the fatal blows, adequately
explained why [his] conduct was sufficient to be “fighting” or “mutual
combat” under the common law offense of affray. The court, however,
properly acquitted [him] of the statutory offense of second-degree assault.
Id. at 257-58.
There was no charge of mutual affray in this case, and therefore the evidence did
not generate an instruction on that crime; and beyond that, the requested instruction
misstated the law with respect to affray and the requirement of consent for that crime. It
would have informed the jury that a “mutual affray occurs when both parties willingly enter
into a fight.” Because, with respect to affray, Maryland law does not require an agreement
or consent of both parties to fight, the proposed jury instruction did not correctly state the
applicable law and the trial judge did not abuse its discretion in deciding not to give it. The
court properly declined to give a legally incorrect instruction on a crime that was not
charged and was not relevant to the crime that was charged.
The appellant also argues that the requested instruction on mutual affray “would
have informed the jury – in a way that the assault instruction on the elements of assault did
not – that its inquiry into whether Mr. Davis consented extended to his deeds.” We reject
24
that argument because nothing in the proposed instruction would have conveyed that
information to the jury.
II.
The appellant contends the trial court erred by admitting in evidence State’s Exhibit
23, a slow-motion version of surveillance video footage Detective Patrick obtained at the
scene. He asserts that the video was not properly authenticated.
Upon responding to the scene, Detective Patrick learned that a video surveillance
camera was attached to the front of 8609 Flower Avenue. He contacted the landlord and
obtained access to the building, where he located a server in the basement and an “older”
video surveillance system. He was able to view and “pull the video surveillance from the
incident.” He was not able to retrieve all the video from the surveillance system, but he
“captured a majority of the incident from the time of [the appellant’s] and Ms. Watson’s
arrival, to when the incident occurred.”
At trial, portions of the video were admitted in evidence as State’s Exhibit 24, which
showed surveillance footage from 1:07 to 1:16 p.m., and State’s Exhibit 25, which showed
surveillance footage from 1:34 to 1:37 p.m. In addition, a still shot with a time stamp of
1:05 p.m., taken from the surveillance video, was admitted as State’s Exhibit 17. These
exhibits were admitted without objection.
State’s Exhibit 23 was identical to State’s Exhibit 25, but in slow motion. Detective
Patrick testified that State’s Exhibit 23 was a fair and accurate picture of what he had
observed on State’s Exhibit 25. When the prosecutor sought to admit State’s Exhibit 23,
defense counsel objected on the ground that “there is no business line authenticating it[,]”
25
that the defense did not “believe it’s from the original source[,]” and that the defense had
“no idea who slowed it down” or “how they did it.” The trial judge allowed State’s Exhibit
23 to be admitted “assuming that it’s authenticated, who did the slowing down so it’s a
proper, other than the slowing down, because the slowing down is not the original so.” The
following testimony ensued:
[Prosecutor]: Can you tell the ladies and gentlemen of the jury how this video
was slowed down?
[Detective Patrick]: It was slowed down to a, essentially a slower version of
this instead of it being a, in real time full speed. It’s slowed down not
necessarily frame by frame, but in a slower motion, so you can see what
occurred at a slower speed than was captured in the video surveillance itself.
[Prosecutor]: And during that process, did anything change or was it
substantially altered from what you originally viewed on May 15th, 2020?
[Detective Patrick]: It was not.
[Prosecutor]: State moves to admit State’s 23 into evidence.
[Defense Counsel]: Your Honor, I continue my objection. I have no idea
who did it. I have no idea how it got slowed down, or what the process that
was actually used was, and nor do I know that the detective knows.
THE COURT: Okay. Was this done at the police lab, or was this done at the
scene? Who did the slowing down?
[Detective Patrick]: I believe it was the State’s Attorney’s Office that slowed
it down, Your Honor.
THE COURT: Okay. And other than the slowing down, is there any other
changes to the video?
[Detective Patrick]: No, Your Honor.
The trial judge then voiced his intention to overrule the objection and defense
counsel asked to approach. At the bench conference, the following colloquy occurred:
26
[Defense Counsel]: Your Honor, if the detective didn’t slow it down and he
doesn’t quite know who slowed it down, cause it might have been he
believes, the State’s Attorney’s Office, I don’t think he can testify that it
wasn’t altered in any other way. How does he know?
THE COURT: Didn’t he testify that he’s seen both of them and the only
difference is the speed?
[Defense Counsel]: That’s the only difference, that he’s, I mean –
THE COURT: I understand. You can cross-examine if you see anything else,
you can certainly cross-examine him.
[Defense Counsel]: – that’s fine. Okay. And –
THE COURT: And if, if it would rise to a level of (unintelligible) your
observation, then you’re going to have to, but it would, it –
[Defense Counsel]: – I just think procedurally.
THE COURT: – and so we’ve seen both of them and this is the slowed down
version. Now I will allow that because it seems to me it’s just like showing
a plethora of pictures.
[Defense Counsel]: Understood.
THE COURT: And frankly if it, if there’s some distortion to it I haven’t seen
it, I would object from there.
The State moved to admit State’s Exhibit 23 and the court ruled, “[s]ubject to the
objections noted at the bench, it’ll be received.” The slow-motion video was played for
the jury, during which Detective Patrick described certain movements he observed on the
video. There were no further objections or any indication that State’s Exhibit 23 differed
from State’s Exhibit 25 in any way other than it was in slow motion.
In this Court, the appellant argues that the trial court abused its discretion by
“admitting the video without sufficient indications of authenticity.” He maintains that a
27
“video may be authenticated under two distinct rules[,]” either the pictorial testimony
theory, by which a video may be authenticated through the testimony of a witness with
personal knowledge that it fairly and accurately represents the scene or object it purports
to depict as it existed at the relevant time, or under the silent witness method, by
presentation of evidence describing a process or system that produces an accurate result.
According to the appellant, because Detective Patrick did not know who was responsible
for slowing down the video or how it was done, there was no basis to authenticate the
video. He asserts prejudice by the admission of the video because it was used to show the
movement of his and Mr. Davis’s feet, in order to prove that he was the initial aggressor in
the altercation. We are not persuaded.
“An appellate court typically reviews a trial court’s ruling on the admission of
evidence for abuse of discretion.” State v. Galicia, 479 Md. 341, 389 (2022) (citing Portillo
Funes v. State, 469 Md. 438, 478 (2020)), reconsideration denied (Aug. 10, 2022), cert.
denied, ___ U.S. ___, 143 S. Ct. 491 (2022). Accord Donati v. State, 215 Md. App. 686,
708 (2014) (“Determinations regarding the admissibility of evidence are generally left to
the sound discretion of the trial court.”). Similarly, we review “for abuse of discretion a
trial court’s determination as to whether an exhibit was properly authenticated.” Mooney
v. State, 487 Md. 701, 717 (2024). Accord Covel v. State, 258 Md. App. 308, 322 (“We
review the trial court’s authentication of evidence for an abuse of discretion.”), cert. denied,
486 Md. 157 (2023). “A trial court abuses its discretion when ‘no reasonable person would
take the view adopted by the trial court,’ or when the ruling is ‘clearly against the logic and
28
effect of facts and inferences before the court.’” Prince v. State, 255 Md. App. 640, 652
(2022) (quoting King v. State, 407 Md. 682, 697 (2009)), cert. denied, 482 Md. 746 (2023).
Authentication is governed, in part, by Md. Rule 5-901. Subsection (a) of that Rule
provides that “[t]he 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.” Subsection (b) provides “[b]y way of illustration
only, and not by way of limitation,” various “examples of authentication or identification
conforming with the requirements” of the Rule. Those examples include, among other
things, “[t]estimony of a witness with knowledge that the offered evidence is what it is
claimed to be[,]” circumstantial evidence, “such as appearance, contents, substance,
internal patterns, location, or other distinctive characteristics, that the offered evidence is
what it is claimed to be[,]” and evidence “describing a process or system used to produce
the proffered exhibit or testimony and showing that the process or system produces an
accurate result.” Md. Rule 5-901(b)(1), (4), and (9).
Recently, in Mooney, the Supreme Court of Maryland addressed authentication of
video footage, holding that:
for video footage to be admissible, as with other evidence, there must be
sufficient evidence for a reasonable juror to find by a preponderance of the
evidence that the video is what it is claimed to be. In other words, the
“reasonable juror” test applies to authentication of videos – i.e., for a trial
court to admit a video, there must be sufficient evidence for a reasonable
juror to find more likely than not that the evidence is what it is purported to
be.
487 Md. at 708. Moreover, the trial judge “‘need not find that the evidence is necessarily
what the proponent claims, but only that there is sufficient evidence that the jury ultimately
29
might do so.’” Jackson v. State, 460 Md. 107, 116 (2018) (quoting United States v.
Safavian, 435 F. Supp. 2d 36, 38 (D.D.C. 2006)) (emphasis in original). “The threshold of
admissibility is, therefore, slight.” Id.Prior to Mooney, Maryland cases had addressed two methods of video
authentication. The first is the pictorial testimony method, by which “video evidence is
admitted through the testimony of a witness with firsthand personal knowledge[.]” Covel,
258 Md. App. at 323 (citing Washington v. State, 406 Md. 642, 652 (2008)). The second
is the silent witness method, by which a witness speaks “to the reliability and authenticity
of the system used to procure the video.” Id. Under the silent witness theory, a party can
authenticate video evidence through the “‘presentation of evidence describing a process or
system that produces an accurate result.’” Prince, 255 Md. App. at 652 (quoting
Washington, 406 Md. at 652). Testimony under this theory may include the ‘“type of
equipment or camera used, its general reliability, the quality of the recorded product, the
process by which it was focused, or the general reliability of the entire system.’” Reyes v.
State, 257 Md. App. 596, 630-31 (2023) (quoting Jackson, 460 Md. at 117). “There is no
strict rubric for admitting evidence under the silent witness theory.” Covel, 258 Md. App.
at 323 (citing Jackson, 460 Md. at 116). Nor are there “any rigid, fixed foundational
requirements[.]” Jackson, 460 Md. at 117 (cleaned up).
In Mooney, in addition to holding unequivocally that the reasonable juror test
applies to the authentication of video footage, the Supreme Court made clear that the
“pictorial testimony” and “silent witness” theories are not the only ways to authenticate a
30
video. 487 Md. at 728. A video may be authenticated under several theories, including
through circumstantial evidence under Rule 5-901(b)(4). Id. The Court explained:
Video footage can be authenticated in different ways under the rules
governing authentication, including through the testimony of a witness with
knowledge under Maryland Rule 5-901(b)(1), circumstantial evidence under
Maryland Rule 5-901(b)(4), or a combination of both, as is the circumstance
in this case. There need not be a witness with personal knowledge of every
single event depicted in a video for the video to be authenticated. What
matters is that the proponent of the video must demonstrate that the evidence
is sufficient for a reasonable juror to find by a preponderance of the evidence
that the video is what it is claimed to be.
Id. at 730.
In the case at bar, the trial court did not abuse its discretion by admitting State’s
Exhibit 23, the slow-motion version of the video footage admitted as State’s Exhibit 25.
The appellant’s arguments that there was no testimony from anyone connected to the place
from which the surveillance video was obtained to explain the accuracy or reliability of the
cameras or recording equipment and that Detective Patrick “merely testified that he was
given access to an older surveillance system and downloaded a video[,]” are not properly
before us. There was no objection to the admission of Exhibit 25, the “normal-speed”
version of the video. The appellant did not assert at trial, and does not argue on appeal,
that there was any difference between Exhibit 25 and Exhibit 23 other than the playback
speed. The only argument he makes on appeal that he made below is that he did not know
precisely who slowed down the video or how it was done. Detective Patrick testified that
other than the change to the speed at which the video was played, there were no changes
made to it.
31
The slow-motion version of the video was properly authenticated through a
combination of the testimony of Detective Patrick and circumstantial evidence, specifically
the normal-speed video that was admitted in evidence without objection and the absence
of anything to show that the videos differed in any way other than playback speed. A
reasonable juror could have found by a preponderance of the evidence that State’s Exhibit
23 was what it purported to be, a slow-motion version of Exhibit 25, the video already
admitted in evidence. The trial court did not abuse its discretion by admitting State’s
Exhibit 23.9
III.
Finally, the appellant contends the trial court violated his due process right to
present a defense by restricting his cross-examination of Officer Merriman and excluding
a defense witness, Officer Considine, on the basis of relevance.
On cross-examination, defense counsel sought to question Officer Merriman about
why he had accompanied Mr. Davis in the ambulance ride to the hospital when the original
plan had been for Officer Considine to do so. Officer Merriman testified that Officer
Considine “kind of has a weaker stomach than I do” and with “the heat, and all the blood,
9
Even if the trial court had erred in admitting State’s Exhibit 23, which it did not,
we would find the error harmless. Harmless error occurs when “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[.]” Dorsey v. State, 276 Md. 638,
659 (1976). Consequently, “errors that do not contribute to a defendant’s guilty verdict do
not warrant reversal.” State v. Jordan, 480 Md. 490, 506 (2022). Here, the appellant was
not prejudiced by the slow-motion version of the video because the exact same evidence,
albeit at normal speed, was admitted without objection. As a result, we can declare beyond
a reasonable doubt that the admission of State’s Exhibit 23 did not in any way influence
the verdict.
32
and everything[,]” “[h]e wasn’t feeling like it – like maybe it was a good idea.” When
asked whether Officer Considine said he did not want to punch Mr. Davis the entire ride to
the hospital, Officer Merriman stated that he did not remember. The State objected to this
line of questioning and the following exchange occurred:
THE COURT: I’m assuming the objection is hearsay.
[Prosecutor]: Yes.
THE COURT: Why is that relevant, with Officer Considine hitting the man.
[Defense Counsel]: It goes to the demeanor, that’s why I’m going to ask him
why was it –
THE COURT: The witness has already described the demeanor. You can’t
go into what Officer Considine’s conclusion would have been. I mean,
Officer Considine might have had great reasons for punching the guy, but
that (unintelligible) we can’t ask him.
[Defense Counsel]: Okay.
THE COURT: So I’m not going to let you ask that.
* * *
[Defense Counsel]: Well, I can refresh his recollection if he watches the body
worn camera.
THE COURT: But why is it relevant why Officer Considine didn’t want to
ride with him. If it’s only relevant to say that Mr. Davis is a jerk and a terrible
person, or something along those lines, I don’t think that this witness can
offer that. It’s not real relevant.
The trial judge ruled that defense counsel could not question Officer Merriman about
whether Officer Considine did not ride to the hospital with Mr. Davis because he did not
want to punch Mr. Davis.
33
After Officer Merriman testified, a bench conference was held about the possibility
of the defense calling Officer Considine as a witness:
THE COURT: Okay. So the only witness left is potentially Officer
Considine or Considine.
[Defense Counsel]: We’ll both have to –
THE COURT: And as I, I mean, as I understand it, there’s a report
somewhere where he says I don’t want to ride with the guy because I might
punch him.
[Defense Counsel]: He said there’s body worn camera.
THE COURT: Okay.
[Defense Counsel]: It’s not reported, it’s just on the camera.
THE COURT: And why, tell me again why is that relevant. I’ll let you put
that on the record. And I understand the objection is hearsay, but you can
(unintelligible).
[Defense Counsel]: I think it goes to his demeanor, Your Honor.
THE COURT: His demeanor meaning Mr. –
[Defense Counsel]: Mr. Davis’s demeanor.
THE COURT: Davis.
[Defense Counsel]: Immediately after this alleged incident, how he was
behaving and how, how realistic it is that he was the victim of an assault
versus the perpetrator of an assault. And this is a self-defense case, Your
Honor.
THE COURT: Mm-hm.
[Defense Counsel]: We are arguing that [the appellant] was defending
himself. And so the other individual’s demeanor and how it would –
THE COURT: Mm-hm.
34
[Defense Counsel]: – what it would be and what [the appellant] had to defend
against is relevant.
The trial judge permitted defense counsel to make a proffer. Defense counsel played
a portion of a recording from a body worn camera in which Officer Considine said, “I don’t
know if I can handle it without punching him the whole time.” The court then sustained
the State’s objection, concluding that Officer Considine’s statement was not relevant.
On appeal, the appellant contends the trial court’s ruling was in error because
Officer Merriman’s statement would have shown that Mr. Davis’s demeanor was such that
the officer would have wanted to punch him, and that would have tended to show that Mr.
Davis “was the aggressor, and not a victim.” The appellant asserts that “[t]he fact that a
trained police officer, who encounters all kinds of individuals, could not ride in the
ambulance with Mr. Davis, would have been highly probative for the jury” and could have
created reasonable doubt in the minds of the jurors. He maintains that the bar for showing
evidence is relevant is low and was satisfied here.
The Sixth Amendment, made applicable to the States by the 14th Amendment,
provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him[.]” U.S. Const. amend. VI.10 This “means more
than being allowed to confront the witness physically.” Davis v. Alaska, 415 U.S. 308, 315
10
Similarly, Article 21 of the Maryland Declaration of Rights provides that “in all
criminal prosecutions, every man hath a right . . . to be confronted with the witnesses
against him . . . [and] to examine the witnesses for and against him on oath[.]” Maryland
courts use the same analysis for confrontation challenges under Article 21 that the federal
courts use to analyze the Sixth Amendment. Cooper v. State, 434 Md. 209, 232 (2013),
cert. denied, 573 U.S. 903 (2014). Lewis does not present argument that they should be
considered differently here.
35
(1974). The “main and essential purpose of confrontation is to secure for the opponent the
opportunity of cross-examination.” Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986)
(cleaned up). See also Ashton v. State, 185 Md. App. 607, 621 (2009) (“‘Central to that
right is the opportunity to cross-examine witnesses.’” (quoting Pantazes v. State, 376 Md.
661, 680 (2003))).
The Confrontation Clause does not, however, guarantee “cross-examination that is
effective in whatever way, and to whatever extent, the defense might wish.” Van Arsdall,
475 U.S. at 679 (quotation marks and citation omitted). “[T]rial judges retain wide latitude
insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-
examination based on concerns about, among other things, harassment, prejudice,
confusion of the issues, the witness’ safety, or interrogation that is repetitive or only
marginally relevant.” Id. It follows that the Confrontation Clause does not alter the general
rule that “[a] trial court does not abuse [its] discretion when it excludes cross-examination
that is irrelevant.” Simmons v. State, 392 Md. 279, 296 (2006) (citing Md. Rule 5-402).
“‘Relevant evidence’ means evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Md. Rule 5-401. “Except as otherwise
provided by constitutions, statutes, or these rules, or by decisional law not inconsistent with
these rules, all relevant evidence is admissible[,]” but “[e]vidence that is not relevant is not
admissible.” Md. Rule 5-402. “While trial judges are vested with discretion in weighing
relevancy in light of unfairness or efficiency considerations, trial judges do not have
discretion to admit irrelevant evidence.” State v. Simms, 420 Md. 705, 724 (2011).
36
Here, the trial court did not err by excluding the proffered evidence on the ground
that it was not relevant. Obviously, Officer Considine made the statement once he arrived
on the scene, which was after the stabbing took place. There was no evidence at all to
relate Officer Considine’s statement to Mr. Davis’s demeanor at the time of the altercation
between Mr. Davis and the appellant that was the basis for the assault charge. As we have
already noted, the trial judge had wide latitude to limit the inquiry into Officer Considine’s
statement based on concerns about such things as confusion of the issues and issues that
are only marginally relevant. Pantazes, 376 Md. at 680. It is difficult to conjure how
Officer Considine’s desire to punch Mr. Davis after the police arrived at the scene could
shed light on what happened during the altercation the jury was concerned about. The trial
court reasonably decided that the evidence in question did not have a tendency to prove a
fact in issue, and therefore was not relevant.
JUDGMENT OF THE CIRCUIT COURT
FOR MONTGOMERY COUNTY
VACATED. CASE REMANDED TO THAT
COURT FOR FURTHER PROCEEDINGS
NOT INCONSISTENT WITH THIS
OPINION. COSTS TO BE PAID BY
MONTGOMERY COUNTY.
37
The correction notice(s) for this opinion(s) can be found here:
https://mdcourts.gov/sites/default/files/import/appellate/correctionnotices/cosa/0614s23cn.pdf