State v. Heath , 464 Md. 445 ( 2019 )

State of Maryland v. Nicholas Heath, No. 36, September Term, 2018. Opinion by Greene,
J.
CRIMINAL LAW – PROCEEDINGS – OPENING STATEMENT – “OPENING
THE DOOR” – APPROPRIATE REBUTTAL EVIDENCE
Although comments made in opening statement are not evidence, pursuant to the “opening
the door” doctrine, the general principles involved in allowing a party “to meet fire with
fire” are applicable to an opening statement in which improper comments are made. The
remedy to allow responsive evidence to be admitted is applicable provided the response is
proportionate to the malady and not otherwise limited by law.
A criminal defendant’s trial counsel who, during opening statement, called attention to
Respondent’s purpose for being at a bar the night the underlying events took place triggered
an analysis of the application of the “opening the door” doctrine. The Court of Appeals
held that the trial court erred in admitting into evidence a previously redacted portion of
Mr. Heath’s statement to the police, i.e., that Mr. Heath intended to sell “white” at Ottobar.
The trial court first erred in admitting the statement because it was irrelevant to the issues
in the case. Second, the statement was a disproportionate response to the comment made
in opening. And third, even if the evidence was relevant, it should not have been admitted
because its probative value was substantially outweighed by the danger of unfair prejudice.
The trial court committed an error of law and abused its discretion in allowing the
unredacted statement into evidence and the error was not harmless. Therefore, the Court
of Appeals affirmed the judgment of the Court of Special Appeals, which reversed the trial
court’s ruling and remanded the case for a new trial.
Circuit Court for Baltimore City
Case Nos. 114296017
114296018 IN THE COURT OF APPEALS
Argued: January 3, 2019
OF MARYLAND
No. 36
September Term, 2018
______________________________________
STATE OF MARYLAND
v.
NICHOLAS HEATH
Barbera, C.J.
Greene
McDonald
Watts
Hotten
Getty
Cathell, Dale R. (Senior Judge, Specially
Assigned)
JJ.
______________________________________
Opinion by Greene, J.
Barbera, C.J. and McDonald, J., dissent.
______________________________________
Filed: June 28, 2019
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2019-06-28 13:50-04:00
Suzanne C. Johnson, Clerk
In the present case, we consider whether a comment made by defense counsel in an
opening statement invited the State to present, as evidence, a statement made by
Respondent Nicholas Heath (“Mr. Heath”) indicating his intention to sell cocaine. The
State urges us to apply the opening the door doctrine to the facts of the present case, and
hold that defense counsel, through her opening statement, opened the door to admitting, as
evidence, Mr. Heath’s stated intention. To resolve this issue we explore whether defense
counsel’s remarks triggered the opening the door doctrine, and if so, whether the responsive
evidence offered by the State was a proportional response. For reasons we shall explain,
we hold that the trial court erred in admitting irrelevant evidence and abused its discretion
in weighing the proportionality of the contested portion of Mr. Heath’s statement. The
error in doing so was not harmless; thus, we affirm the judgment of the Court of Special
Appeals.
FACTUAL & PROCEDURAL BACKGROUND
Mr. Heath was charged with the murder of Tom Malenski (“Mr. Malenski”) and the
attempted murder of Martin Clay (“Mr. Clay”). The charges stemmed from an altercation
that happened on September 25, 2014 at Ottobar, where Mr. Malenski and Mr. Clay were
employed, in Baltimore City. The undisputed facts are that on the evening of September
25, 2014, Dustin Cunningham (“Mr. Cunningham”) directed inappropriate comments
toward Erica Davis (“Ms. Davis”) and Ms. Davis’s unidentified friend. Mr. Heath, in an
attempt to quell any hostility between Mr. Cunningham and Ms. Davis, offered an apology
to Ms. Davis and her friend on Mr. Cunningham’s behalf. Ms. Davis did not accept the
apology. She, instead, directed Mr. Heath to inform Mr. Cunningham that he needed to
apologize himself for the comments that he had made.
Eventually, after continued antagonism between the individuals, the bouncers
removed Mr. Cunningham from the bar. Both Mr. Clay and Mr. Malenski aided the
bouncers in removing Mr. Cunningham. Mr. Malenski was not working at Ottobar that
night and Mr. Clay had gotten off of work at 11:00 p.m., but each were “hanging out” at
Ottobar at the time of the altercation. Mr. Cunningham claimed that, once outside, the
bouncers attempted to beat him up, so he ran away. Mr. Clay and Mr. Malenski ran down
the street after Mr. Cunningham, but he successfully escaped. Thereafter, Mr. Clay and
Mr. Heath offered conflicting stories as to what happened.
According to Mr. Clay, while he and Mr. Malenski were walking back to Ottobar,
Mr. Heath came towards them with a knife. At first, Mr. Clay thought that Mr. Heath had
punched him in the face, but he ultimately realized that he had been cut. Mr. Clay testified
that, while Mr. Malenski was trying to “get in between” Mr. Clay and Mr. Heath, Mr. Heath
slashed Mr. Malenski’s throat.
Offering a different version of the events, Mr. Heath, in his recorded statement to
the police, indicated that upon leaving Ottobar, he headed in the direction of where Mr.
Cunningham had fled. According to Mr. Heath, the men who had chased Mr. Cunningham,
including Mr. Clay and Mr. Malenski, were walking back toward Ottobar. The group of
men approached Mr. Heath while he was trying to pass them. Mr. Heath’s path was
blocked, and the men began arguing with him. Mr. Heath claimed that he saw Mr.
Malenski pull out a knife. Mr. Heath, in trying to defend himself from an attack, told the
2
men to back off. He explained that Mr. Clay probably got cut in the face while Mr. Heath
was defending himself against the attack. Mr. Heath said that he intended to cut Mr.
Malenski’s deltoid muscle and that would have prevented Mr. Malenski from raising his
arms. Mr. Heath stated that he was “merely trying to ‘disable’” Mr. Malenski.
Unfortunately, according to Mr. Heath, Mr. Malenski lunged forward causing Mr. Heath
to accidentally cut Mr. Malenski’s neck instead of his shoulder.
Although Mr. Clay’s and Mr. Heath’s stories diverged, it is undisputed that Mr.
Heath cut Mr. Clay’s face and Mr. Malenski’s throat. Furthermore, it is uncontested that
during the confrontation, Mr. Heath cut one of Mr. Malenski’s arteries, which resulted in
his death. Mr. Heath was tried in the Circuit Court for Baltimore City for the first-degree
murder of Mr. Malenski, the attempted first-degree murder of Mr. Clay, and other related
charges. The substantive issue at trial was whether Mr. Heath acted with criminal intent
or in self-defense.
Mr. Heath did not testify at trial, so his version of the events was established by way
of a recorded statement that he gave to the police during an interview on September 27,
2014. Prior to trial, and without the trial court’s involvement, the parties entered into a
stipulation and agreed to various redactions of Mr. Heath’s statement to police.1 The
1
The parties did not involve the court in their agreement, but their agreement was brought
to the court’s attention. The State explained to the court:
Prior to the opening statements, Your Honor may recall that defense counsel
and . . . myself, along with I believe the defendant, discussed some redactions
from the defendant’s statement. Much of those redactions related to the
defendant’s statement in which he discussed selling drugs as his primary
source of income. State, again, agreed to those redactions prior to hearing
[defense counsel]’s opening statement[.]
3
redacted portions of the statement related to Mr. Heath’s selling of drugs as his primary
source of income.
During her opening statement at trial, Mr. Heath’s counsel made the following
comment about Mr. Heath’s purpose for going to Ottobar:
Ladies and gentlemen, the young man that sits here [next to counsel] is
Nicholas Heath. And just as the State described to you in regards to [Mr.
Malenski and Mr. Clay], he too loved music, liked to hang out, had friends,
was busy doing tattoos, that’s one of his primary sources of income in
order to pay a lawyer to get his wife from England to the United States. That
was his goal and that was his purpose to stop by the Ottobar that night.
His friend, Dustin Cunningham says lots of people there have tattoos or had
tattoos, this is a good source.
(Emphasis added).
The State did not object during defense counsel’s opening statement. The State
waited until its case-in-chief to respond to defense counsel’s remark in opening that Mr.
Heath was at Ottobar to find clients for his tattoo business.2 Citing that remark, the State
moved to unredact a portion of Mr. Heath’s statement to the police, in which he said that
he went to Ottobar intending to sell “white.”3 Specifically, the State sought to unredact
and admit into evidence the following portion of Mr. Heath’s statement:
2
The State did not promptly raise an objection to defense counsel’s opening remark. After
two of the State’s witnesses had testified, the State approached the bench and objected to
defense counsel’s opening remark. The trial judge did not immediately rule on the State’s
motion. At the end of the first day of trial, outside the presence of the jury, the judge heard
arguments and ruled on the State’s motion.
3
“White” is a street name for cocaine. STREET NAMES AND NICKNAMES FOR COCAINE,
https://luxury.rehabs.com/cocaine-addiction/street-names-and-nicknames/
[https://perma.cc/HM73-X6GW]. Cocaine has (continued . . .)
4
I mean look at nobody’s being violent man. Nobody’s went in there starting
trouble. I went in there to sit down to sell a got damn bit of white that
they, I’m just trying to make a fucking living. And everybody around me is
gotta act like an asshole. That’s all I wanted to do. You know am I wrong?
Yeah.
(Emphasis added). The State argued that defense counsel’s remark, that Mr. Heath went
to Ottobar for purposes related to his tattoo business, contradicted Mr. Heath’s statement
to the police and opened the door to Mr. Heath’s “true” purpose for being at Ottobar, his
intent to sell “white.”4 Defense counsel argued that opening statements are not evidence.
Furthermore, according to defense counsel, regardless of the opening the door doctrine, the
portion of the statement offered by the State was inadmissible bad acts evidence. Defense
counsel asserted that Mr. Heath’s statement was “highly prejudicial [with] no probative
[value]” and therefore should not be admitted.
The trial court weighed the probative value and prejudicial effect of the contested
portion of Mr. Heath’s statement and reasoned that Mr. Heath’s explanation for “being
present [at Ottobar] . . .” was probative of “the manner in which he is alleged to have
conducted himself that evening.” The trial judge expressed that he “would not have
(. . . continued)
many nicknames, but “white” is one “of the more popular and enduring names used in the
United States[.]” Id. The term “white” is derived from the drug’s appearance, as it is
typically a fine, white, crystalline powder. Id.
4
Notably, Mr. Heath’s statement to the police does not indicate that he went to Ottobar for
tattoo-related purposes. Apparently, defense counsel obtained that information from Mr.
Cunningham. Defense counsel stated that she had “in [her] case notes that [Mr.
Cunningham] had talked to [Mr. Heath] about people [at Ottobar] that may want tattoos.”
She was “sp[eaking] out [sic] of information that [she] had received and honestly . . . didn’t
even think about the drug-dealing part . . . because [Mr. Heath’s] profession . . . is
tattooing.”
5
stricken that testimony, although some of the things which have been read, not everything
would appear to be fully admissible even under the probative greater than prejudicial [sic]
value of standard.” Ultimately, the trial court “permit[ted] the State to unredact the
testimony with regard to [Mr. Heath’s] statement as to why he was there that night with
regard to certain business operations.”
After the trial court’s ruling, defense counsel requested, and was granted, a
continuing objection to references to Mr. Heath’s involvement in the “possession and
distribution of controlled dangerous substances[.]” Additionally, the prosecutor clarified
that the trial judge’s ruling was limited to the portion of Mr. Heath’s statement in which he
says that he went to Ottobar intending to sell “white,” and “that the rest of the references
to [Mr. Heath] selling drugs is not probative[.]” The trial judge said, “Right.” He explained
that other references to selling drugs in Mr. Heath’s statement to the police are “beyond
the pale . . . it’s relevant only to that night and [Mr. Heath’s] presence at Ottobar.”
Later in the trial, Mr. Heath’s statement to the police, including the portion in which
he said that he went to Ottobar intending to sell “white,” was admitted into evidence over
defense counsel’s objection. A recording of Mr. Heath’s statement was played in open
court for the jury. Mr. Heath did not offer any evidence tending to establish that he visited
Ottobar for reasons related to his tattoo business, or for any other reason. Ultimately, the
jury returned a verdict against Mr. Heath of guilty to involuntary manslaughter and second-
degree assault.
Mr. Heath appealed his convictions to the Court of Special Appeals. In an
unreported opinion, our intermediate appellate court reversed the trial court’s ruling that
6
the door had been opened. Heath v. State, No. 2736, Sept. Term 2015, 2018 WL 3085156,
at *6 (Md. Ct. Spec. App. June 21, 2018). First, the intermediate appellate court held that
Mr. Heath’s statement that he went to Ottobar to sell “white” constituted inadmissible bad
acts evidence pursuant to Md. Rule 5-404. Id. at *8-11. Additionally, the court determined
that Mr. Heath’s counsel did not open the door during her opening statement. Id. at *13.
Alternatively, the court reasoned that, “[a]ssuming arguendo that [Mr. Heath’s] counsel
had ‘opened the door,’ the remedy – permitting the prior acts statement to come in – was
not proportionate to the malady – impugning [Mr. Heath’s] character in the eyes of the
jury.” Id. Ultimately, the Court of Special Appeals held that the trial court’s error in
allowing the statement into evidence was not harmless and therefore reversed and
remanded the case for a new trial. Id. at *7.
The State petitioned this Court for a writ of certiorari and we granted the petition.
State v. Heath, 461 Md. 458, 193 A.3d 208 (2018). We now review whether the trial court
erred when it determined that defense counsel opened the door to admitting the defendant’s
previously redacted statement based upon a comment made in her opening statement and,
if so, whether admitting the defendant’s statement in response was legal error and an abuse
of discretion.5
5
The questions posed in the State’s petition for writ of certiorari included:
1. Does [the] introduction of evidence that opens the door to the admission
of “other act” evidence operate to give the other act evidence “special
relevance,” thereby relieving a party seeking to introduce other act
evidence (in response to the door being opened) of the burden to establish
“special relevance” under Maryland Rule 5-404 and State v. Faulkner,
314 Md. 630 (1989)?
(continued . . .)
7
PARTIES’ ARGUMENTS
As a preliminary matter, the parties ask us to define the standard for reviewing
whether a party has opened the door to the admissibility of responsive evidence. The State
requests that we review this case as an application of the opening the door doctrine. Mr.
Heath, on the other hand, argues that the opening the door doctrine is not applicable here.
In addition, the State asserts that we should reverse the Court of Special Appeals on the
basis that the trial court did not abuse its discretion when it admitted into evidence Mr.
Heath’s statement regarding his intent to sell “white” at Ottobar. The State contends that
the admission of Mr. Heath’s statement was a proportional response to defense counsel’s
opening statement regarding Mr. Heath’s intent to find tattoo clients at Ottobar. Mr. Heath
(. . . continued)
2. Should an appellate court reviewing a trial court’s ruling that a party has
“opened the door” to otherwise inadmissible evidence apply an abuse of
discretion standard, and does that standard include a first-level fact-
finding by the trial court that is subject only to review for clear error?
3. Applying the appropriate standard of review, did the Court of Special
Appeals err first, by holding that counsel cannot open the door based upon
comments made in an opening statement and second, by substituting its
judgment for the trial court’s determination and making a factual finding
about the intent and effect of Heath’s counsel’s comment in opening
statement, and whether it opened the door to admission of Heath’s
statement to police that he went to the bar where Malenski was murdered
for the purpose of selling cocaine?
4. Did the Court of Special Appeals err in concluding that admission of a
lone comment in the defendant’s recorded statement that he planned to
sell drugs was not harmless, where the State made no further mention of
the statement at trial?
8
argues, however, that even if the door was opened, Md. Rule 5-404 prohibits the admission
of the rebuttal evidence that the State offered.6
We hold that the general principles of the opening the door doctrine that allow a
party “to meet fire with fire” permitted the trial judge to consider whether to admit into
evidence Mr. Heath’s statement that he intended to sell “white” at Ottobar. The trial judge,
however, failed to recognize that Mr. Heath’s intention to sell drugs at Ottobar injected
into the case evidence on a collateral issue. The introduction of a collateral issue and the
evidence offered on that issue had nothing to do with the underlying criminal charges and
exceeded one of the limitations to the introduction of responsive evidence under the
“opening the door” doctrine.
Another limitation under the “opening the door” doctrine is proportionality. Terry
v. State, 332 Md. 329, 338, 631 A.2d 424, 428 (1993) (.“[T]he remedy must be
proportionate to the malady.”). The responsive evidence permitted by the trial judge was
disproportionate because the jury would likely give more weight to a statement admitted
into evidence than to a comment made in opening. This disproportionality stems from the
instructions given to the jury. Specifically, the trial judge instructed the jury to make its
decision based solely on the evidence admitted and not on what was said in opening
statements.
6
This Court does not reach the issue of character evidence and whether the statement was
inadmissible under Md. Rule 5-404. The evidence was inadmissible on various other
grounds, so we need not determine in this case whether a criminal defendant’s bad thoughts
constitute a bad act, wrong or other crime under Md. Rule 5-404(b).
9
Regardless of whether the statement was a proportionate response, allowing the
State to admit Mr. Heath’s statement into evidence was substantially more prejudicial than
probative under Md. Rule 5-403 and should not have been received. Clearly, the statement
was unfairly prejudicial in that it associated Mr. Heath with drugs and likely undermined
his credibility with the jury. The jury had to evaluate Mr. Heath’s version of what occurred
at Ottobar on the evening of September 25, 2014, and his theory of self-defense.
Given the unfair prejudicial impact that Mr. Heath’s statement had on his credibility,
and how that likely affected the jury’s perception of him, we cannot say beyond a
reasonable doubt that the jury’s verdict was in no way influenced by the responsive
evidence. In admitting the evidence, the trial judge risked the jury finding Mr. Heath guilty
based on the inference that Mr. Heath was “up to no good.” Therefore, the statement’s
admission at trial was not harmless error and Mr. Heath is entitled to a new trial.
STANDARD OF REVIEW
The standard for reviewing whether the opening the door doctrine yields to the
admissibility of evidence offered at trial was thoroughly reviewed in this Court’s recent
decision, State v. Robertson, 463 Md. 342, 352-58, 205 A.3d 995, 1000-1004 (2019). The
framework for review is a familiar one. See id. Whether an opening the door doctrine
analysis has been triggered is a matter of relevancy, which this Court reviews de novo. Id.
at 353, 205 A.3d at 1001. A trial court does not have discretion to admit irrelevant
evidence. State v. Simms, 420 Md. 705, 724-25, 25 A.3d 144, 155 (2011) (“The de novo
standard of review is applicable to the trial judge’s conclusion of law that the evidence at
10
issue is or is not of consequence to the determination of the action.”) (quoting Parker v.
State, 408 Md. 428, 437, 970 A.2d 320, 325 (2009) (cleaned up).
Whether responsive evidence was properly admitted into evidence is reviewed for
an abuse of discretion. Robertson, 463 Md. at 358; 205 A.3d at 1004; Simms, 420 Md. at
725, 25 A.3d at 156 (“whether the evidence is inadmissible because its probative value is
outweighed by the danger of unfair prejudice . . . is [] tested for abuse of [] discretion.”).
Additionally, an error is harmless if a reviewing court can say, after an independent review
of the record, that beyond a reasonable doubt, the error in no way influenced the verdict.
Dorsey v. State, 276 Md. 638, 659, 350 A.2d 665, 678 (1976). This Court has held that an
“[a]buse of discretion exists where no reasonable person would take the view adopted by
the trial court, or when the court acts without reference to guiding rules or principles.”
Robertson, 463 Md. at 364, 205 A.3d at 1007 (quoting Alexis v. State, 437 Md. 457, 478,
87 A.3d 1243, 1254 (2014)) (cleaned up).
Relevance and the “Opening the Door” Doctrine
Maryland Rule 5-401 provides the scope for the admission of evidence. The starting
point for determining the admissibility of evidence is whether it is relevant. Relevant
evidence is 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 (2018). The inverse of that rule, of course, is
that "[i]rrelevant evidence is inadmissible.” Simms, 420 Md. at 725, 25 A.3d at 156
(citations omitted). Maryland Rule 5-402 “makes it clear that the trial court does not have
discretion to admit irrelevant evidence[.]” Id. at 724-25, 25 A.3d at 155 (citation omitted).
11
Once the first hurdle of legal relevancy is satisfied, the next consideration is “whether the
evidence is inadmissible because its probative value is outweighed by the danger of unfair
prejudice, or other countervailing concerns as outlined in Maryland Rule 5-403.” Id. at
725, 25 A.3d at 156 (citation omitted). Some evidence may be relevant but far too
prejudicial to be admissible. See Md. Rule 5-403 (requiring a weighing of unfair
prejudicial danger versus the probative value).
“Opening the Door” and Opening Statements
An added layer to Maryland Rules 5-401 and 5-403 is the legal doctrine of “opening
the door,” which expands the rule of relevancy. The opening the door doctrine “authorizes
admitting evidence which otherwise would have been irrelevant in order to respond to (1)
admissible evidence which generates an issue, or (2) inadmissible evidence admitted by
the court over objection.” Clark v. State, 332 Md. 77, 84-85, 629 A.2d 1239, 1243 (1993).
For example, the doctrine provides a remedy where one party introduces evidence that was
previously irrelevant, over objection, and in doing so, makes relevant an issue in the case.
As a remedial tactic, “the trial court may rule that the first party has ‘opened the door’ to
evidence offered as a fair response by the opposing party that previously would have been
inadmissible because irrelevant, but has now become relevant.” 5 Lynn McLain, Maryland
Evidence State and Federal, § 103:13(c)(i) at 82 (3rd ed. 2013). Put another way,
“‘opening the door’ is simply a way of saying: ‘My opponent has injected an issue into the
case, and I ought to be able to introduce evidence on that issue.’” Clark, 332 Md. at 85,
629 A.2d at 1243.
12
Although the “opening the door” doctrine expands the rule of relevancy, the doctrine
has its limitations. The doctrine does not allow, for example, “injecting collateral issues
into a case or introducing extrinsic evidence on collateral issues.” Id. at 87, 629 A.2d at
1244. A collateral issue is one that is immaterial to the issues in the case. See Hardison v.
State, 118 Md. App. 225, 239, 702 A.2d 444, 451 (1997) (defining a “non-collateral fact”
as one that is material to the issues in the case); see also Gray v. State, 137 Md. App. 460,
481-85, 769 A.2d 192, 204-06 (2001) (holding that testimony from a witness concerning
her being raped was a collateral issue because the alleged rape existed only as an unproven
allegation, testimony of the allegation was highly likely to lead the jury on a detour as to
whether the rape had actually happened and would distract the jury).
An additional limitation of the doctrine is consistent with Maryland Rule 5-403.
That limitation excludes evidence if its probative value “is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” Md. Rule 5-403; see also Clark, 332 Md. at 87, 629 A.2d 1244. 7
We echo an oft-repeated and well-established principle: opening statements are not
evidence. See Ford v. State, 462 Md. 3, 33, 197 A.3d 1090, 1107 (2018) (citing Keller v.
Serio, 437 Md. 277, 288, 85 A.3d 283, 289 (2014)). In Ford, we highlighted several
7
Maryland Rule 5-403 was not codified at the time this Court decided Clark. In Clark,
this Court adopted the language of Federal Rule of Evidence 403 as a limitation to the
“opening the door” doctrine. Clark v. State, 332 Md. 77, 87, 629 A.2d 1239, 1244 (1993).
Several months after the filing of Clark, on December 15, 1993, this Court adopted Rule
5-403, which is derived from Federal Rule of Evidence 403.
13
definitions of an “opening statement.” Id. at 32, 197 A.3d at 1106-07. In summary, we
explained the term as “a statement by counsel made at the beginning of a trial, before the
presentation of evidence, in which counsel usually provides the fact-finder with an outline
of the case, the evidence that is to be presented, and the arguments that are to be made.”
Id. at 32-33, 197 A.3d at 1107. We emphasized there that “an opening statement is not
itself evidence, as it is given prior to the presentation of evidence, and often includes a
preview of the evidence that counsel expects to present during trial.” Id. at 33, 197 A.3d
at 1107. Previously, we have counseled that “[a]n opening statement should refer to facts
that will be admissible in evidence.” Terry v. State, 332 Md. 329, 337, 631 A.2d 424, 428
(1993).
Nonetheless, pursuant to our case law, a comment in opening may “open the door”
to evidence offered by the opposing party that previously would have been irrelevant, but
has become relevant. Id.; see also Little v. Schneider, 434 Md. 150, 161, 73 A.3d 1074,
1080 (2013) (“the doctrine of ‘opening the door’ applies equally in opening statements,
witness examination, and closing arguments.”); Johnson v. State, 408 Md. 204, 226, 969
A.2d 262, 275 (2009) (“It is equally well settled that the State’s case-in-chief may include
‘rebuttal’ evidence to which the defense has ‘opened the door,’ . . . during opening
statement[.]”).
In Martin, v. State, we held that a statement made in opening can trigger the
“opening the door” doctrine. 364 Md. 692, 708, 775 A.2d 385, 394 (2001). However, we
limited our examination to whether the responsive evidence was proportionate to defense
counsel’s opening remark. Id. In that case, Dorian Martin (“Mr. Martin”), a former
14
Baltimore City police officer, was charged with theft and misconduct in office. Id. at 695,
775 A.2d at 386. In opening statement, defense counsel told the jury that it was Mr.
Martin’s “life-long desire to become a police officer,” that the police department was using
Mr. Martin as a “‘sacrificial lamb’ for the Hispanic community” and that the department
“‘abandoned’ him.” Id. at 705, 775 A.2d at 392. The trial judge allowed the State to
introduce evidence that Mr. Martin consulted with an attorney after he was accused of
robbery and that, immediately after the consultation, he resigned from the police force. Id.
at 703, 775 A.2d at 391. According to the trial judge, that evidence was relevant for
purposes of rebutting defense counsel’s opening remarks. Id. at 705, 775 A.2d at 392.
On appeal from that ruling, we held that “[t]he State’s use of [Mr. Martin’s]
consultation with an attorney to rebut defense counsel’s ‘abandonment’ assertion was not
a proportionate response.” Id. at 708, 775 A.2d at 394. We noted that “[e]vidence of a
criminal defendant’s consultation with an attorney is highly prejudicial, as it is likely to
give rise to the improper inference that a defendant in a criminal case is, or at least believes
himself to be guilty[,]” and concluded that “[t]he danger of unfair prejudice presented by
the introduction of this evidence substantially outweighed any probative value, and it
should not have been admitted.” Id. at 708-09, 775 A.2d at 394-95.
DISCUSSION
In the present case, defense counsel, during her opening statement, presented a fact
that triggered the opening the door analysis. Defense counsel asserted that Mr. Heath
sought to be reunited with his wife and that he was at Ottobar to find clients for his tattoo
business to make money to pay for her transportation to the United States. As such, the
15
trial court needed to decide whether the State could admit, as responsive evidence, a
previously redacted portion of Mr. Heath’s statement to the police. The State contended
that Mr. Heath’s “true” reason for going to Ottobar was reflected in his statement to the
police, which was to sell drugs.
We conclude that the trial court committed a legal error when it admitted the
prosecutor’s responsive, but legally irrelevant, evidence on a collateral issue. In addition,
the trial court abused its discretion when it allowed the prosecutor to present evidence that
was not a proportionate response to remarks made in defense counsel’s opening statement.
Lastly, the trial court abused its discretion when it concluded that the probative value of
the prosecutor’s responsive evidence was not substantially outweighed by the danger of
any unfair prejudice.
First, Mr. Heath’s intent to sell “white” at Ottobar was a collateral issue that should
not have been injected into the case. It was immaterial to the issues in the case, namely
Mr. Heath’s culpability in the death of Mr. Malenski and the assault on Mr. Clay. The
dispositive question is whether the evidence used by the State was relevant to a fact or
matter that is material to the issue in the case. See Pearson v. State, 182 Md. 1, 14, 31 A.2d
624, 629 (1943) (“Evidence of collateral facts . . . should be excluded, for the reason that
such evidence tends to divert the minds of the jury from the real point in issue, and may
arouse their prejudices.). Here, Mr. Heath’s intent to sell cocaine at Ottobar had nothing
to do with the underlying criminal charges, and thus exceeded the limitations of the opening
the door doctrine.
16
Secondly, in permitting the State to respond to defense counsel’s opening remark,
the trial judge was limited to providing a “remedy [that was] proportionate to the malady.”
Terry, 332 Md. at 338, 631 A.2d at 428. In Terry, defense counsel told the jury in opening
statement that the defendant entered a plea of not guilty to the charge of conspiracy to
distribute cocaine and related charges because he was innocent. Id. at 332, 631 A.2d at
425. The trial court permitted the State to respond to that statement by introducing
evidence that the defendant had a previous conviction of possession of cocaine with intent
to distribute, on the theory that the defendant may not have wanted to plead guilty because
he faced “back up time” for violating his probation, and mandatory sentencing as a
subsequent offender. Id. at 332-33, 631 A.2d at 425-26. We explained that, in admitting
evidence under the “open door” doctrine, “the remedy must be proportionate to the
malady[,]” and held that evidence of the previous conviction should not have been admitted
because the impact of that evidence was “fraught with [the] danger of improper prejudicial
use by the jury.” Id. at 338, 631 A.2d at 428.
The responsive evidence admitted by the trial judge in the present case was a
disproportionate response to the comment made in defense counsel’s opening statement
because it did not properly counterbalance defense counsel’s inappropriate comment.
Similar to Terry, in the present case, a comment made in opening was determined to be
inappropriate because “[a]n opening statement should refer to facts that will be admissible
in evidence.” Id. at 337, 631 A.2d at 428. Even if defense counsel’s comments were
designed to gain the jury’s sympathy, the State’s responsive evidence failed to rebut that
suggestion in a proportionate way. Combating defense counsel’s remark with Mr. Heath’s
17
admission regarding his intention to sell drugs was “tantamount to killing an ant with a pile
driver.” See id. at 339, 631 A.2d at 429.
There is an inherent difference between the weight that a jury is instructed to give
evidence and the weight that a jury is instructed to give a comment made in opening. Here,
the jurors were instructed to decide Mr. Heath’s guilt or innocence based on the evidence
presented to them, and that opening statements were not evidence.8 Given the trial judge’s
instructions, it is not unlikely that the jury gave greater weight to the responsive evidence
offered by the State, which was disproportionate to the attempt by defense counsel to
bolster her client’s reputation in her opening statement.
Third, even if the responsive evidence were relevant, it was highly prejudicial when
compared to the probative value that it offered. The State conceivably offered evidence of
Mr. Heath’s intent to sell drugs because an issue arose, due to defense counsel’s opening
statement, as to Mr. Heath’s true purpose for going to Ottobar. In response to a slight
bolstering by defense counsel, the trial court permitted the State to attack the credibility of
Mr. Heath by associating him with drugs. An association with drugs is extremely
prejudicial given the fact that Mr. Heath was not charged with a drug related offense. See
Hannah v. State, 420 Md. 339, 347, 23 A.3d 192, 196 (2011) (“Evidence is prejudicial
8
During the jury instructions, the trial judge gave the following instructions on evidence
and opening statements:
During your deliberations, you must decide this case based only on the
evidence that you and your fellow jurors heard together in the courtroom. . .
. Opening statements and closing arguments of lawyers are not evidence.
They are intended only to help you to understand the evidence and to apply
the law. Therefore, if your memory of the evidence differs from anything
the lawyers or I may say, you must rely on your own memory of the evidence.
18
when it tends to have some adverse effect . . . beyond tending to prove the fact or issue that
justified its admission.”) (citation omitted). The evidence offered by the State had the
“adverse effect” of attacking Mr. Heath’s credibility and likely misled the jury to believe
that Mr. Heath’s intent to engage in drug dealing played a role in the altercation. As such,
the probative value of Mr. Heath’s statement to the police was substantially outweighed by
the danger of unfair prejudice and should not have been admitted. Md. Rule 5-403.
Moreover, Mr. Heath’s credibility was at issue because of his claim of self-defense.
The success of that claim depended upon the jury’s willingness to believe Mr. Heath’s
version of the events. Evidence that Mr. Heath went to Ottobar to sell drugs undermined
not only his character but also his credibility. See State v. Giddens, 335 Md. 205, 217, 642
A.2d 870, 875-876 (1994) (noting that involvement in the manufacture or distribution of
drugs is relevant to a person’s credibility and affects it in a negative way).
Whether a Remedy is Proportionate
We now examine what would have been a proportionate response to defense
counsel’s remarks in opening statement. The State did not object to defense counsel’s
opening remarks when they were made and, instead, waited until its case-in-chief was well
underway to seek recourse. The State’s decision to forego a timely remedy – while,
perhaps, a strategic decision – was not the proper way to remedy defense counsel’s malady.
A proper response by the State in reaction to defense counsel’s opening remarks would
have been to object and request that the trial judge strike the comments relating to Mr.
Heath’s purpose for being at Ottobar and to admonish the jury to disregard the
inappropriate portion of defense counsel’s opening remarks. To strike the objectionable
19
portions of the opening statement would, indeed, have been a proportional response since
counsel had a stipulation about facts that would be redacted from Mr. Heath’s pretrial
statement to the police.
Harmless Error
In the present case, the court erred when it allowed the unredacted statement into
evidence to combat an inappropriate comment made in opening. Accordingly, reversal is
required “unless the error did not influence the verdict.” Porter v. State, 455 Md. 220, 234,
166 A.3d 1044, 1052 (2017) (citation omitted). Conversely, if there is a possibility that
the error played a role in the jury’s verdict, the error is prejudicial and a reversal is
mandated. Id. An error cannot be deemed harmless “unless a reviewing court, upon its
own independent review of the record, is able to declare a belief, beyond a reasonable
doubt, that the error in no way influenced the verdict[.]” Dorsey v. State, 276 Md. 638,
659, 350 A.2d 665, 678 (1976). We must “be satisfied that there is no reasonable
possibility that the evidence complained of – whether erroneously admitted or excluded –
may have contributed to the rendition of the guilty verdict.” Id.
The State argues that because Mr. Heath admitted to engaging in a fight with Mr.
Malenski and Mr. Clay, the second-degree assault conviction was likely inevitable.
Therefore, according to the State, the comment that was admitted into evidence was
harmless because Mr. Heath would have been convicted whether or not the statement was
admitted into evidence. Next, the State contends that the statement about planning to sell
cocaine in Ottobar was harmless. This is so, according to the State, because the prosecutor
did not mention or refer to Mr. Heath’s selling of cocaine for the rest of the trial and did
20
not use the statement to characterize Mr. Heath as a drug dealer. Finally, the State asserts
that the jury may not have understood what “white” meant and, therefore, did not associate
Mr. Heath with drugs in any way.
The State’s contentions regarding harmless error fail on several accounts. In our
view, the association with the distribution of illicit drugs unfairly impeded Mr. Heath’s
credibility with the jury. Evidence that Mr. Heath intended to sell drugs unfairly gave the
jury reason to disbelieve Mr. Heath’s claim of self-defense. As a result, the jury may have
convicted Mr. Heath solely because of his association with drugs and illicit activity.
Next, to influence the verdict, only one juror would have needed to understand what
the term “white” meant. Given the context in which Mr. Heath used the word, we are not
persuaded that no one on the jury understood that the term, as used here, referred to cocaine.
Pursuant to our holding in Dorsey, we cannot say beyond a reasonable doubt that the jury
was not influenced by the inflammatory evidence of Mr. Heath’s stated intention to sell
“white” at Ottobar. The error is therefore not harmless and a new trial for Mr. Heath is
warranted.
CONCLUSION
Defense counsel’s comment in her opening statement about what Mr. Heath
intended to do at Ottobar was not evidence, but the comment triggered an analysis under
the opening the door doctrine. In applying the principles of the opening the door doctrine,
the State’s responsive evidence was inadmissible because it injected into the case evidence
on a collateral issue and was a disproportionate response to defense counsel’s opening
remark. Furthermore, even if the State’s responsive evidence was determined to be non-
21
collateral/relevant, the probative value of Mr. Heath’s statement was substantially
outweighed by the danger of unfair prejudice. See Md. Rule 5-403. The trial judge’s errors
were not harmless, given the unduly prejudicial impact on Mr. Heath’s credibility.
Therefore, Mr. Heath is entitled to a new trial.
JUDGMENT OF THE COURT OF
SPECIAL APPEALS AFFIRMED.
COSTS IN THIS COURT AND THE
COURT OF SPECIAL APPEALS TO BE
PAID BY PETITIONER.
22
Circuit Court for Baltimore City
Case Nos. 114296017
114296018 IN THE COURT OF APPEALS
Argued: January 3, 2019
OF MARYLAND
No. 36
September Term, 2018
______________________________________
STATE OF MARYLAND
v.
NICHOLAS HEATH
Barbera, C.J.
Greene
McDonald
Watts
Hotten
Getty
Cathell, Dale R. (Senior Judge,
Specially Assigned),
JJ.
______________________________________
Dissenting Opinion by McDonald, J.
which Barbera, C.J., joins.
______________________________________
Filed: June 28, 2019
As the Majority Opinion recounts, there was no dispute at trial that Nicholas Heath
wielded the knife that fatally slashed Tom Malenski’s neck and that severely wounded
Martin Clay outside Ottobar on the evening of September 25, 2014. Rather, the issue at
trial was how he had come to do so and with what intent.
Mr. Heath elected not to testify at the trial. His version of the incident was presented
through a recording of his interview with police detectives that was introduced into
evidence by the State. One problem with that recorded interview, from Mr. Heath’s
perspective, was that he had also made extensive admissions to the detectives that he was
involved in selling illegal drugs. With reference to the evening in question, Mr. Heath told
the detectives that he had gone to Ottobar not to “start trouble” but rather to sell “a bit of
white … to make a … living.” Prior to the trial, the prosecution and the defense agreed
that Mr. Heath’s admissions of drug dealing, including his purpose in being at Ottobar on
the night of the incident, would be redacted from the recording that was to be played for
the jury, as well as from the transcript of that recording.1
In opening statement, however, defense counsel chose to take the whitewash of the
recorded interview a bit further. She told the jury that Mr. Heath had gone to Ottobar that
1
The unredacted version of the recorded interview does not appear in the record.
However, when the trial court and counsel discussed the redaction of that recording, the
prosecutor noted that the transcript of the unredacted recording contained “page after page
after page” of Mr. Heath discussing his drug dealing activities and that the redactions
eliminated Mr. Heath’s statements about drug dealing as “his primary source of income.”
Neither defense counsel nor the court disputed those descriptions of the complete recording
and the redactions.
night for the relatively benign purpose of promoting his tattoo business in order to raise
money to bring his wife to the United States from Great Britain.2 The State argued that the
defense had thereby opened the door to restoring Mr. Heath’s references to his drug dealing
in the recorded statement that was to be played for the jury. In response, the trial court
adopted a measured approach. The State was not permitted to restore all of Mr. Heath’s
admissions of drug dealing to the recording and transcript, but only his statement as to why
he had gone to Ottobar. That statement comprises approximately nine seconds of an
interview that lasted well over an hour and occupies less than two lines of the 39-page
single-spaced transcript of the otherwise redacted recording.
Having obtained that relief, the State did not exploit it. The prosecutor did not direct
the jury’s attention to Mr. Heath’s statement about selling a “bit of white” – or even present
any evidence explaining that “white” was a reference to cocaine. Nor did she mention the
statement in closing argument. The defense similarly made no mention of it during the
remainder of the trial, although the defense dropped the pretense that Mr. Heath was
present simply to promote his tattoo business in order to reunite with his wife. No one
explained to the jury what “white” meant.
2
Mr. Heath had indeed mentioned a tattoo business, as well as his wife, during the
recorded interview, but that characterization of why he was at Ottobar that evening was
misleading, as would be evident to anyone familiar with the unredacted recording.
When the prosecutor pointed out that the defense opening statement had deviated in
this regard from Mr. Heath’s recorded statement, defense counsel told the trial court that
she expected Mr. Cunningham to testify that Mr. Heath was at Ottobar to solicit tattoo
customers. However, she did not attempt to elicit such testimony when Mr. Cunningham
was on the stand.
2
The jury ultimately convicted Mr. Heath of involuntary manslaughter of Mr.
Malenski and second-degree assault of Mr. Clay. It acquitted Mr. Heath of the more serious
charges, including first-degree murder and first-degree attempted murder.3
The Majority Opinion holds that the manslaughter and assault convictions must be
reversed on the ground that the trial court abused its discretion when it restored Mr. Heath’s
brief statement about why he was at Ottobar that night under the “open door” doctrine.
I disagree with that conclusion for two reasons. First, the trial court appropriately
exercised its discretion when it allowed a targeted response after defense counsel “opened
the door” as to Mr. Heath’s purpose in going to Ottobar. Second, even if that lone and
ambiguous reference to his drug dealing activity should also have been excised from the
redacted recording, the error was harmless beyond a reasonable doubt.
The “Open Door” Doctrine
Under the “open door” doctrine, once a party has opened the door, the opposing
party is allowed, as a matter of fairness, to make a tailored response with evidence that,
although otherwise inadmissible, has thereby become relevant. See Little v. Schneider, 434
Md. 150, 157 (2013); Mitchell v. State, 408 Md. 368, 388-89 (2009). As the Majority
Opinion states, a trial court’s decision as to the extent of that response is assessed by an
appellate court under an abuse-of-discretion standard. Majority slip op. at 11.
3
Mr. Heath was also acquitted of second-degree murder, second-degree attempted
murder, first-degree manslaughter, first-degree assault, and carrying a dangerous weapon
with intent to injure.
3
This Court has long held that the “open door” doctrine may be triggered by
assertions made in an opening statement. E.g., Little, 434 Md. at 161 (“the doctrine of
‘opening the door’ applies equally in opening statements, witness examination, and closing
arguments”); Mitchell, 408 Md. at 388 (same); Johnson v. State, 408 Md. 204, 226 (2009)
(“It is equally well settled that the State’s case-in-chief may include ‘rebuttal’ evidence to
which the defense has ‘opened the door’ … during opening statement …”); Martin v. State,
364 Md. 692, 708 (2001) (“[w]hile comments made in opening statements are not evidence
…, the general principles [of the open door doctrine] are applicable”) (citations and internal
quotation marks omitted).
As the Majority Opinion apparently concedes, when defense counsel suggested that
Mr. Heath was at Ottobar that night solely to advance his tattoo business to reunite with
his wife, the defense triggered the “open door” doctrine.4 I agree. However, the Majority
Opinion further holds that the targeted response to that statement permitted by the trial
court requires reversal of Mr. Heath’s convictions. I disagree.
Whether the Trial Court Abused its Discretion
The abuse-of-discretion standard is extremely deferential to the trial court. This
Court recently reiterated that “abuse of discretion exists where no reasonable person would
take the view adopted by the trial court, or when the court acts without reference to guiding
rules or principles.” State v. Robertson, 463 Md. 342, 364 (2019) (quotation marks,
4
See Majority slip op. at 15-16, 21. The Majority Opinion thus disagrees with the
Court of Special Appeals, which held that the open door doctrine was not triggered on the
ground that opening statements are not evidence. See Heath v. State, 2018 WL 3085156
at *6.
4
brackets, and citation omitted); see also North v. North, 102 Md. App. 1, 14 (1994) (to be
an abuse of discretion, a ruling must be “well removed from any center mark … and beyond
the fringe of what [is] minimally acceptable”). Thus, a ruling reviewed under that standard
“will not be reversed simply because the appellate court would not have made the same
ruling.” Nash v. State, 439 Md. 53, 67 (2014).
Here, other than a conclusory statement at the outset of its analysis, the Majority
Opinion does not apply the abuse-of-discretion standard. See Majority slip op. at 15-20.
Rather, the Majority Opinion makes its own de novo assessment that the evidence should
have been excluded on the ground that it was “highly prejudicial.” Majority slip op. at 18.
In other words, the Majority Opinion simply would have reached a different conclusion
than the trial court.
In my view, the trial court acted within its discretion when the defense raised the
question as to why Mr. Heath went to Ottobar that evening. The trial court allowed the
State to un-redact two lines in a lengthy recorded statement in which Mr. Heath specifically
spoke about why he was present at Ottobar. The jury was not permitted to hear his many
other statements to the detectives about his drug dealing activity. Nor was any independent
evidence of his drug dealing placed before the jury.5 In my view, it cannot be said that “no
reasonable person would take the view adopted by the trial court.”
5
This is in contrast to Terry v. State, 332 Md. 329 (1993), where the prosecution
countered an “innocuous,” though improper, statement by defense counsel comparing the
defendant to his former co-defendants by introducing independent evidence of the
defendant’s prior drug conviction. This Court held that the disproportionate response had
“kill[ed] an ant with a pile driver.” 332 Md. at 339. By contrast, in this case, the State did
not respond with extraneous evidence of past drug dealing. Rather, the responsive evidence
5
Whether Any Error was Harmless
Even if the trial court ruling could be deemed an abuse of discretion, the error was
harmless. Under the doctrine of harmless error, an appellate court will not reverse a
conviction if satisfied beyond a reasonable doubt that the error did not affect the verdict.
Ford v. State, 462 Md. 3, 43-44 (2018).
There is no likelihood of such an effect in this case. First, the two lines of the
recorded statement admitted under the “open door” doctrine comprised approximately nine
seconds of a recorded interview played for the jury that lasted well over an hour. Neither
party directed the jury’s attention to that brief moment, nor did either party elaborate on
the meaning of “white” in that statement. Given that expert testimony is generally required
to explain the significance of such a term in a drug prosecution,6 it is quite likely that the
term had no impact at all on the jury. Nor were any witnesses called to testify about Mr.
consisted of Mr. Heath’s own statement as to why he was present at Ottobar on the night
of the incident – a statement that contrasted with the picture that defense counsel was
attempting to paint.
6
See, e.g., Joelle A. Moreno, Strategies for Challenging Police Drug Jargon
Testimony, 20 Crim. Just. 28-29 (2006) (noting that “federal courts unanimously agree that
the jargon of the narcotics trade and the code that drug dealers often use are certainly
beyond the ken of the average juror”); United States v. Delpit, 94 F.3d 1134, 1145 (8th Cir.
1996) (“There is no more reason to expect unassisted jurors to understand drug dealers’
cryptic slang than antitrust theory or asbestosis”); Annotation, Admissibility of expert
evidence concerning meaning of narcotics code language in federal prosecution for
narcotics dealing – modern cases, 104 ALR Fed 230; Annotation, Necessity and
Admissibility of Slang, Lingo, Jargon or Code Expert Testimony in State Cases, 35 A.L.R.
7th 6.
6
Heath’s drug dealing on that night or any other.7 An instructive comparison is Robertson,
342 Md. at 363-64, where the Court held that the State’s response to defense testimony that
opened the door was disproportionate because the State elicited evidence of the details of
a prior incident unrelated to the crime charged. Here, the prosecutor never once mentioned
that Mr. Heath was a drug dealer when questioning witnesses or making her closing
argument. A stray mention by the defendant himself in an hour-plus recording was the
only time “white” was ever mentioned before the jury.
Second, as noted above, Mr. Heath was convicted of involuntary manslaughter and
second-degree assault. Involuntary manslaughter has no intent element, and second-degree
assault requires only an intent to injure. He was acquitted of other charges with stronger
intent elements. In his recorded interview with the detectives, Mr. Heath admitted to
participating in the altercation (while admittedly being intoxicated), said that he had
attempted to stab someone in the deltoid with a knife, and contended that he had
accidentally slashed his victim in the throat.
Mr. Heath’s only defense to the two charges of which he was convicted was that he
had acted in self-defense. Far from undermining that defense, his own statement that he
had gone to Ottobar not to “start trouble,” but just to sell “white” in order “to make a …
living” was perfectly consistent with that defense. If it was error to admit the statement, it
was harmless.
7
By contrast, Mr. Heath’s repeated assertions in the interview that the other parties
to the altercation were high on drugs that night were more explicit and remained part of the
recording played for the jury.
7
Chief Judge Barbera has advised that she joins this opinion.
8