Colkley v. State

Clayton Daman Colkley v. State of Maryland, No. 833, September Term 2019.
CRIMINAL LAW > TRIAL; RECEPTION OF EVIDENCE; CROSS-
EXAMINATION AND IMPEACHMENT
When a hearsay statement has been admitted in evidence, the credibility of the declarant
may be attacked, and if attacked may be supported, by any evidence which would be
admissible for those purposes if the declarant had testified as a witness. Md. Rule 5-806(a).
CRIMINAL LAW > TRIAL; RECEPTION OF EVIDENCE; CROSS-
EXAMINATION AND IMPEACHMENT
CRIMINAL LAW > EVIDENCE; JUDICIAL NOTICE; RECORDS
When a hearsay declarant has a per se impeachable prior conviction and is unavailable for
cross-examination, refusal to judicially notice the prior conviction is an abuse of discretion
where the record indicates that the trial court did not engage in the requisite balancing test
to determine whether the prejudice of admitting the conviction outweighed the probative
value.
CRIMINAL LAW > REVIEW; IN GENERAL; HARMLESS ERROR
Any error in failing to admit an unavailable hearsay declarant’s prior drug related
conviction to impeach his prior recorded interview with police was harmless beyond a
reasonable doubt where the jury also heard recorded testimony from the declarant in which
he admitted to being high on cocaine during the interview and professed his lack of
credibility and motive to lie to police.
CRIMINAL LAW > EVIDENCE; OTHER MISCONDUCT BY ACCUSED; IN
GENERAL
While evidence of a defendant’s past crimes or wrongful acts is generally inadmissible,
such evidence may be admitted where that evidence is substantially relevant to some
contested issue in the case and is not offered to prove guilt based on propensity to commit
crimes.
CRIMINAL LAW > REVIEW; DISCRETION OF LOWER COURT
Where the record demonstrates that the trial court fully considered the issues presented in
ruling on an objection, the trial court does not ipso facto abuse its discretion by failing to
articulate its specific reasoning for denying the objection.
CRIMINAL LAW > EVIDENCE; OTHER MISCONDUCT BY ACCUSED; IN
GENERAL; OTHER MISCONDUCT SHOWING MOTIVE
Trial court properly allowed testimony which implicated Appellant’s involvement in two
additional murders where the testimony was offered to establish Appellants motive and
consciousness of guilt for the crimes alleged.
CRIMINAL LAW > EVIDENCE; EVIDENCE FROM PRIOR PROCEEDINGS
The trial court did not abuse its discretion in declining to redact the phrase “ladies and
gentlemen of the jury” from a witness’s prior recorded testimony. While the inclusion of
that phrase may have alerted the jury that Appellant was previously tried, it did not reveal
whether that trial resulted in a conviction.
CRIMINAL LAW > EVIDENCE; HEARSAY
Assuming arguendo that a police officer’s characterization of a statement made to police
was hearsay, that officer’s testimony was nevertheless admissible because Appellant
opened the door to the inquiry by mischaracterizing the statement that was made to police.
CRIMINAL LAW > COUNSEL; ARGUMENTS AND STATEMENTS BY
COUNSEL; COMMENTS ON EVIDENCE OR WITNESSES
Prosecutor’s comments during closing argument which characterized a witness’s testimony
as “real,” “raw,” and “pure” did not exceed the permissible bounds of a prosecutor’s ability
to comment on the credibility of the witnesses presented during closing remarks.
CRIMINAL LAW > COUNSEL; ARGUMENTS AND STATEMENTS BY
COUNSEL; COMMENTS ON EVIDENCE OR WITNESSES
Trial court did not abuse its discretion by treating the prosecutor’s remark during rebuttal
– that if the missing witnesses had “something important that they have to say, it would
have come out in this trial” – as rhetorical flourish.
CRIMINAL LAW > REVIEW; DISCRETION OF LOWER COURT; CONDUCT
OF TRIAL IN GENERAL; JURY; SELECTION AND IMPANELING
Trial court did not abuse its discretion in declining to propound Appellant’s proposed voir
dire question asking whether prospective jurors had strong feelings about drugs where the
defendant was not charged with any drug related offenses.
Circuit Court for Baltimore City
Case No. 103216074
103216078
103216080
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 833
September Term, 2019
______________________________________
CLAYTON DAMAN COLKLEY
v.
STATE OF MARYLAND
______________________________________
Kehoe,
Berger,
Reed,
JJ.1
______________________________________
Opinion by Reed, J.
______________________________________
Filed: July 2, 2021
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
1
Judge Kathryn G. Graeff and Judge
2021-09-01 11:13-04:00
Andrea M. Leahy, did not participate in the
Court’s decision to report this opinion pursuant
to Md. Rule 8–605.1.
Suzanne C. Johnson, Clerk
This case stems from a shooting that occurred on the 1700 block of Port Street in
Baltimore on May 28, 2003 (the “Incident”). During the Incident, four individuals were
shot, one of whom was fatally wounded. In 2003, the State of Maryland (the “State”)
indicted Clayton Colkley (“Appellant”) for his alleged involvement in the Incident. The
charges against Appellant included, inter alia, attempted first-degree murder of William
Courts, conspiracy to murder William Courts, and first-degree murder of James Bowens.
This appeal comes from Appellant’s convictions at his fifth trial. Appellant’s first and
second trial each resulted in convictions, but those convictions were each subsequently
reversed and remanded for a new trial. Appellant’s third and fourth trials each resulted in
a mistrial. In the trial relevant to this appeal, the jury found Appellant guilty of attempted
first-degree murder of William Courts, conspiracy to murder William Courts, and
unlawfully carrying a handgun. Appellant timely appealed.
In bringing his appeal, Appellant presents six (6) questions for appellate review,
which we have rephrased for clarity:2
2
Appellant posed the following six (6) questions for review:
I. Did the court err by precluding impeachment of a hearsay declarant?
II. Did the court err by allowing evidence that Appellant was responsible
for two additional murders?
III. Did the court err by allowing evidence that revealed that Appellant
had been twice previously tried?
IV. Did the court err by allowing hearsay?
V. Did the court abuse its discretion by allowing impermissible closing
argument and rebuttal?
I. Did the trial court err in declining to take judicial notice of an
unavailable hearsay declarants’ prior conviction?
II. Did the trial court abuse its discretion by allowing testimony which
implicated Appellant’s involvement in two other murders?
III. Did the trial court abuse its discretion by allowing the jury to view
video footage of two witnesses’ prior testimony, rather than only an
audio recording or transcript of that testimony, where the video
footage revealed that the witnesses had testified in two prior trials?
IV. Did the trial court abuse its discretion by allowing Det. Snead to
testify to statements made by an alleged witness (Campbell) to the
shooting who was not called to testify at trial?
V. Did the trial court abuse its discretion by allowing statements, by
prosecutors for the State during closing argument/rebuttal, pertaining
to the credibility of certain witnesses and the standard of proof?
VI. Did the trial court abuse its discretion by declining to propound
Appellant’s proposed voir dire question asking whether prospective
jurors had strong feelings about illegal drugs?
For the following reasons, we affirm Appellant’s convictions.
FACTUAL & PROCEDURAL BACKGROUND
This case stems from a shooting that occurred on the 1700 block of Port Street in
Baltimore on May 28, 2003. During the Incident, four individuals were shot,3 one of whom
– James Bowens – was fatally wounded.
VI. Did the court err by declining to ask prospective jurors whether they
held strong feelings about drugs?
3
James Bowens, William Courts, Edwin Boyd, and Yvette Hollie were shot during
the Incident. Bowens was shot once in the chest and died within minutes. Courts was shot
several times in the torso, arms, and legs; Boyd was shot in the eye; and Hollie was shot in
the shoulder – all three survived.
2
In 2003, based on his alleged involvement in the Incident, Clayton Colkley
(Appellant) was indicted for attempted first-degree murder (and lesser-included offenses)
of William Courts; conspiracy to murder William Courts; first-degree murder (and lesser-
included offenses) of James Bowens; and related firearms offenses. Appellant’s first two
trials were reversed and remanded for a new trial. Thereafter, Appellant’s third and fourth
trials each resulted in a mistrial. This appeal stems from Appellant’s convictions following
his fifth trial.
Procedural Background
In Appellant’s first trial (2005), Appellant was jointly tried with his then co-
defendant Darnell Fields. Appellant was convicted of second-degree murder of Bowens;
attempted first-degree murder of Courts; conspiracy to murder Courts, use of a handgun in
the commission of a crime of violence; and wearing or carrying a handgun. However, we
reversed and remanded for a new trial because Appellant had not been present when the
trial court had disposed of a jury note. Fields v. State, 172 Md. App. 496, cert. denied, 399
Md. 33 (2007).
Following a joint retrial in 2010, Appellant was convicted of the same crimes, and
an additional count of wearing or carrying a handgun. However, the Court of Appeals
reversed those convictions and remanded for a new trial. See Fields v. State, 432 Md. 650(2013) (Holding that the trial court erred in denying the defense the opportunity to inspect
internal investigation files related to prior misconduct by two detectives who worked on
the case; and holding that the trial court erred in not allowing cross-examination of the
detectives regarding that misconduct.).
3
In September 2015, Appellant’s third trial commenced. A mistrial was declared
after the State elicited from a witness that Fields – Appellant’s prior co-defendant – had
been charged and convicted in relation to Appellant’s case.
In September 2018, Appellant’s fourth trial resulted in another mistrial after a
State’s witness referred to a prior trial while testifying.
This appeal comes from Appellant’s fifth trial which commenced on January 22,
2019. At the conclusion of Appellant’s fifth trial, the jury found Appellant guilty of
attempted first-degree murder of William Courts, conspiracy to murder William Courts,
and carrying a handgun. The jury found Appellant not guilty of second-degree murder of
James Bowens and a second count of carrying a handgun. Appellant timely appealed his
conviction, contending that multiple errors in the proceeding below warrant the reversal of
his convictions.
Trial Below: Witnesses and Evidence
At Appellant’s fifth trial, the State again presented its theory of the case. Under the
State’s theory, Appellant and three other men drove to the 1700 block of Port Street for the
purpose of killing William Courts at the behest of a large-scale drug supplier – Eric Horsey.
The State asserted that Horsey had a motive to kill Courts because, according to Horsey,
Courts and/or his brother – David Courts – had killed Horsey’s friend and shot Horsey’s
brother. The State alleged that Horsey placed a bounty on William Courts, which
Appellant sought to collect by shooting Courts on the night of the Incident. Conversely,
Appellant’s defense argued at trial that Appellant was not involved in the shooting, and
that the State’s witnesses were falsely accusing him for personal gain.
4
The State’s primary civilian witnesses at trial were Eric Horsey, Qonta Waddell
(deceased), Jermaine Lee, and Edwin Boyd (deceased). Yvette Hollie testified in support
of Appellant. Additionally, Detectives Massey and Snead – who participated in the
investigation of Appellant – testified for the State.
a) Eric Horsey
Eric Horsey testified extensively in Appellant’s second trial in 2010 while in federal
custody. Between 2000 and 2006, Horsey was a large-scale drug supplier, making
$10,000-$30,000 per month.
In January of 2003, Horsey’s friend and brother were shot, allegedly by William
Courts, outside a club called the “Teamsters Hall.” In response, Horsey went to Courts’
neighborhood – including the 1700 block of Port Street – seeking to retaliate. Horsey later
testified that he would have killed someone “[i]f that’s what it took” to get revenge. Horsey
frequented the Port Street area with others over the course of a month. Horsey testified
that, during this time, he “shot quite a few individuals,” but no one was killed.
In 2006, Horsey was arrested on federal conspiracy charges which carried a
potential penalty of life imprisonment. However, Horsey reached an agreement to receive
only a ten-year mandatory-minimum sentence. In return, Horsey agreed to testify against
all alleged co-conspirators and to provide “substantial assistance.”
Although Horsey testified in the present trial, the court found that he was feigning
memory loss and declared him unavailable as a witness. Accordingly, the State played a
video recording of Horsey’s prior testimony from Appellant’s second trial in 2010.
Horsey testified in 2010 that Appellant proposed to kill one of the Courts brothers
5
in exchange for financial compensation. Horsey stated that he agreed on the condition that
Appellant would not implicate Horsey. The next day, Horsey withdrew the offer after word
had spread that he had “put bounties . . . on the Courts brothers.” However, after Appellant
adamantly denied telling anyone of their arrangement, Horsey confirmed their original
agreement on the condition that Appellant would “take care of it” by the end of the
weekend.
Horsey testified that Appellant contacted him two months later stating that he had
“killed Little Will” and “another guy” on Port Street. Horsey further testified that Appellant
told him that Appellant had driven to Port Street with three other people4 intending to shoot
“Billy” (Broderick Campbell), who had previously threatened them. However, when they
got to Port Street Appellant said they did not see Campbell, so they started shooting at other
people. According to Horsey, Appellant said that he “shot the first dude that was in his
way,” while “Bee” (Brian Smith) shot William Courts and Campbell shot Boyd. Horsey
subsequently discovered that William Courts had been shot but was not dead. Horsey
testified that Appellant asked if he could receive partial payment, but Horsey declined.
In his 2010 testimony, Horsey was also permitted to testify to his knowledge of
Appellant’s involvement in the deaths of David Courts and Edwin Boyd.
b) Qonta Waddell
Qonta Waddell’s relevant testimony comes from his recorded interview with police
4
According to Horsey’s testimony, Appellant referred to the three individuals as “E-
Money Bags” (Edwin Boyd), “Bee” (Brian Smith), and “Got Proof” (Guy Pruitt).
6
on July 3, 2003, and his testimony in Appellant’s first trial in 2005. Waddell agreed to
cooperate with the police after he was charged with possession of three handguns.
In his 2003 recorded interview, Qonta Waddell told police that at the time of the
Incident he was on the 1700 block of Port Street with William Courts and James Bowens
when a car pulled up. Waddell stated that he saw four armed men in the car: “Coco”
(Appellant), “Pooh” (Darnell Fields), “Edward” (Edwin Boyd), and another person whom
he did not know. Waddell recalled that Bowens recognized the driver and proceeded to
walk up to the vehicle. According to Waddell, Appellant exited the car and shot Bowens,
and “[t]hen he shot [William Courts], who was shooting down the street at the crowd.”
Waddell also recounted that he saw Fields “[s]hoot down the street… [t]owards the crowd.”
During the interview, Waddell viewed two separate picture arrays in which he
independently identified “Coco” as Appellant and “Edward” as Edwin Boyd.
Two years after his interview with police, Waddell was called to testify in
Appellant’s first trial in 2005. At trial, Waddell testified that he was not present for the
shooting on May 28, 2003. Further, Waddell claimed that he was high on cocaine when he
was arrested in July of 2003 and interviewed by the detectives. Waddell asserted that he
had no memory of the interview and that it was not uncommon for him to periodically lose
his memory. While disclaiming any memory of the interview during his trial testimony,
Waddell opined that “nine times out of ten, you can make things happen if you cooperate
with the police.” He went on to claim that, when he was a regular drug user, he would have
done anything to get out of jail so he could continue using.
Faced with Waddell’s professed lack of memory, the court in Appellant’s first trial
7
(2005) allowed the State to play his recorded interview from July 3, 2003. Following
Appellant’s first trial, Waddell died. Thus, over objection, the video of Waddell’s
testimony in Appellant’s first trial – including his recorded interview from 2003 – was
admitted in the present case.
Three months after his 2005 testimony, Waddell pled guilty to possession of a
controlled dangerous substance with intent to distribute. Accordingly, in the trial sub
judice, Appellant sought to impeach Waddell’s 2005 testimony with evidence of his
subsequent conviction. However, because Waddell was deceased and his subsequent
conviction could not be raised through cross examination, Appellant asked the Circuit
Court to take judicial notice of Waddell’s subsequent conviction. The Circuit Court denied
Appellant’s request, and subsequently denied Appellant’s motion for reconsideration on
the same issue. On appeal, Appellant challenges the Circuit Court’s refusal to take judicial
notice of Waddell’s prior conviction.
c) Jermaine Lee
Jermaine Lee testified in both the present trial and Appellant’s first trial in 2005.
Lee was arrested along with Waddell and Broderick Campbell on July 2, 2003 and was
charged with handgun and drug-trafficking offenses.
In the present trial, Lee testified that Campbell and Waddell were his friends, and
that Bowens and the Courts brothers were his cousins. According to Lee they all sold drugs
together in the area of Lafayette and Port and had matching tattoos. Lee disagreed with a
portion of Horsey’s testimony regarding the 2003 Teamsters Hall incident. Lee asserted
that David Courts had claimed responsibility for the Teamsters Hall shooting; whereas
8
Horsey testified that he believed William Courts was responsible for the shooting. Lee
recalled that after the Teamsters Hall shooting there was a “beef” with Horsey’s “crew,”
and Horsey “put bounties” on the men from Lafayette and Port.
Lee testified that he was with “Buck” (Bowens) and William Courts on Port Street
on the day of the Incident. Lee recalled it was a “[n]ormal day” until a car quickly came
around the corner. According to Lee, Bowens told them it was nothing to worry about
because he recognized the car as belonging to “Pooh” (Fields), who had previously sold
them “E pills.” Lee testified that Bowens then walked up to the car “with his hand in his
dip,” the car stopped, and the passenger door opened. Lee recalled that Appellant exited
the car and shot Bowens in the chest, and subsequently shot William Courts. Lee stated
that all four car doors opened, followed by the sound of multiple gunshots.
Lee testified that he did not initially speak with police because he “wanted revenge,”
meaning he “wanted to shoot [the perpetrators] back for shooting us.” However, three
weeks after Lee’s arrest – along with Waddell and Campbell – Lee contacted a detective
and volunteered to give information about the shooting. When speaking with police, Lee
identified Appellant from a photo array as the person who shot James Bowens and William
Courts.
d) Edwin Boyd
Edwin Boyd participated in a recorded interview with police on June 13, 2003.
Boyd was killed on July 9, 2003. Accordingly, Boyd’s interview with police was admitted
in the present trial.
In his interview with police, Boyd recalled that on the day of the Incident he was
9
with Appellant, Fields, and another individual. Fields drove them to Lafayette and Port in
search of information from individuals in the area. Boyd stated that when they arrived in
the area, they stopped and exited the car to speak with William Courts and James Bowens.
Boyd then crossed the street to talk to his friend Broderick Campbell. Boyd recalled that
he heard gunshots, after which Campbell pulled out a gun and tried to shoot him. Boyd
pushed Campbell away and ran. Boyd heard more gunshots and was struck in the eye by
a bullet as he fled.
Boyd stated that he did not see who was shooting. Boyd claimed that he had a gun
in his pocket, which he threw in a sewer after fleeing. Further, Boyd denied having used
his gun during the Incident notwithstanding Waddell’s testimony that Boyd was one of the
shooters. Police searched for the gun Boyd allegedly dropped in the sewer, but police could
not find the weapon. Despite Boyd’s claim that he did not fire a weapon, Boyd’s hands
tested positive for gunshot residue.
e) Broderick Campbell
On July 3, 2003, Detectives interviewed Campbell, who was arrested with Waddell
and who also asked to speak to the detectives. Detectives interviewed Campbell again on
July 7 and conducted a photo array. Campbell was not called to testify at Appellant’s fifth
trial. However, Det. Snead, who led the investigation in this case, was permitted to testify,
over objections, to the circumstances surrounding Campbell’s second interview.
According to Snead, Campbell was brought back for a second interview because he “re-
contacted [the detectives] and said that there was more information that he wanted to give
that he didn’t give . . . the first time.” On cross examination, Snead testified that Campbell
10
told the detectives that he had lied during the first interview because he was scared.
On redirect examination, over objection, Snead testified that during the July 3
interview, Campbell told detectives that he was present during the Incident, “but
[Campbell] didn’t make any observations.” Additionally, Snead testified, over objection,
that during the July 7 interview, Campbell told detectives: that the shooting involved a
“Silver Crown Vic with a burgundy ragtop and tinted windows”; that Appellant and Fields
were occupants of that vehicle; that he witnessed the shooting; that four people were
involved in the shooting; and that those people used semi-automatic guns.
DISCUSSION
On appeal, Appellant asserts six distinct legal challenges to the trial court’s handling
of the proceeding below. First, Appellant contends that the trial court erred by refusing to
take judicial notice of Waddell’s prior conviction, thus depriving Appellant of the
opportunity to impeach Waddell’s hearsay declarations. Second, Appellant contends that
the trial court abused its discretion by allowing witnesses to testify to their knowledge of
Appellant’s involvement in two additional murders. Third, Appellant argues that the trial
court erred in allowing the jury to view videos of Waddell and Horsey’s prior testimony –
as opposed to transcripts or audio recordings – because the videos revealed that Appellant
was a defendant in two prior jury trials. Fourth, Appellant contends that the trial court
erred in allowing Officer Snead to testify about statements Broderick Campbell made to
Snead during a police interview. Fifth, Appellant asserts that the trial court abused its
discretion by allowing the State to make impermissible statements in its closing argument
and rebuttal. Finally, Appellant contends that the trial court erred when it declined to
11
propound Appellant’s proposed voir dire question asking whether prospective jurors had
any strong feelings about illegal drugs.
I. Refusal to take judicial notice of Waddell’s prior conviction
A. Parties’ Contentions
In Appellant’s first issue raised on appeal, Appellant contends that the trial court
erred in refusing to take judicial notice of Waddell’s 5 prior conviction. Appellant argues
that judicial notice of Waddell’s prior conviction was necessary because Waddell’s
statements were hearsay and Waddell was not subject to cross examination. Thus,
Appellant contends that judicial notice of Waddell’s prior conviction was the only available
method to impeach Waddell’s credibility because it was the only way to have Waddell’s
prior conviction admitted into evidence. Appellant acknowledges that a trial court has
discretion to exclude evidence of prior convictions for impeachment purposes. However,
Appellant argues that the trial court’s failure to engage in a balancing test on the record
was an abuse of discretion. Appellant contends that Waddell’s prior conviction was highly
probative “because Waddell’s credibility was central to the State’s case.” Appellant notes
that Waddell’s charges of possession with intent to distribute were pending when he gave
his 2005 testimony. Thus, Appellant argues that those pending charges, which led to
conviction three months after Waddell’s relevant testimony, “made it even less likely that
he was telling the truth when he spoke to the detectives in 2003, and therefore, less likely
that Appellant had actually been one of the shooters.” Moreover, Appellant contends that
5
See Qonta Waddell factual background supra at 7-9.
12
“the potential for prejudice to the State was nonexistent” because evidence of a State
witness’s prior conviction does not carry the same prejudicial risk of evidence of a
defendant’s prior convictions. Finally, Appellant asserts that the court’s error in precluding
the record of Waddell’s conviction was not harmless given that his credibility was central
to the State’s case.
In response, the State contends that Appellant “never asked the [trial court] to allow
him to impeach Waddell.” Instead, the State asserts that Appellant “argued that the court
should not allow Waddell’s prior testimony to be played for the jury because there was no
. . . opportunity to ask Waddell if he expected a benefit from testifying at [Appellant’s]
2005 trial.” The State admits that Appellant ultimately asked for the trial court to take
judicial notice of Waddell’s conviction. However, the State contends that Appellant only
did so after an effort to exclude the testimony on the grounds that impeachment was
impossible, and that when Appellant subsequently requested judicial notice it was not
explicitly requested for impeachment purposes. Further, the State notes that Appellant had
other available methods of entering Waddell’s prior conviction into evidence, which
Appellant did not attempt.6 Finally, the State contends that, even if Appellant’s judicial
6
The State noted that Appellant could have admitted Waddell’s prior conviction for
impeachment purposes
by asking the State to stipulate to the conviction and argu[ing] to the jury that
it should consider Waddell’s 2005 prior testimony not credible because he
had a motive to curry the State’s favor. Had the State not agreed, [Appellant]
could have asked Massey about Waddell’s prior convictions because Massey
was the arresting officer on one or more of Waddell’s prior charges.
13
notice requests were implicitly meant to be considered for impeachment purposes,
admitting Waddell’s prior convictions would have risked confusion of the jury. Namely,
the State argues that “asking the court to advise the jury that Waddell had been previously
convicted of a list of offenses. . . . [a]bsent any context or instruction, the jury might have
been confused as to why it was being asked to consider Waddell’s convictions.”
B. Standard of Review
“The admissibility of evidence ordinarily is left to the sound discretion of the trial
court.” Moreland v. State, 207 Md. App. 563, 568 (2012) (citing Md. Rule 5–104(a); State
v. Simms, 420 Md. 705, 724–25 (2011); Myer v. State, 403 Md. 463, 476 (2008); and
Hendrix v. Burns, 205 Md. App. 1, 29 (2012)). Likewise, our review of a trial court’s
application of Rule 5–609 is deferential. King v. State, 407 Md. 682, 696 (2009) (citing
Jackson v. State, 340 Md. 705, 719 (1995)). Accordingly, we review a trial court’s Rule
5–609 evidentiary decisions under an abuse of discretion standard, “reversing only when
the court exercise[d] discretion in an arbitrary or capricious manner or . . . act[ed] beyond
the letter or reason of the law.” Id. (internal quotation marks omitted) (quoting Kelly v.
State, 392 Md. 511, 530-31 (2006)). Moreover, our decision as to whether a trial court
abused its discretion “usually depends on the particular facts of the case [and] the context
in which the discretion was exercised.” Id. (quoting Myer, 403 Md. at 486).
C. Analysis
On January 28, 2019, when addressing the admissibility of Waddell’s 2005
testimony for the present trial, Appellant argued:
14
So in addition to the fact that Mr. Waddell wasn’t able to be cross-examined
on the impeachables . . . as they relate to this case, he also wasn’t able to be
examined as far as having accepted responsibility and having bias or motive
to testify in a certain fashion.
. . . .
The Defendant did not have an adequate opportunity to cross examine the
witness . . . . And we would put that same information here because we didn’t
have an opportunity to cross examine Mr. Waddell on the convictions
because they didn’t exist at the time . . . . And also we didn’t get to cross
examine about the relationship with Detective Massey the other cases and of
the misconduct with Detective Massey. . . .
. . . .
. . . And under 5-806, . . . “If the State purports that it would come under
802.1 even though the witness isn’t present at this hearing for testimony,
when a hearsay statement has been in evidence, the credibility of the
Declarant may be attacked and if attacked, may be supported by any evidence
which would be admissible for those purposes if the Declarant has testified
as a witness.”
So not only is he unavailable and not previously subject to cross, but under
5-806 we’d be able to impeach him as if he were present and I can’t do that
without him being present.
And 802.1 just wholly doesn’t apply because he’s not there.
Thus, Appellant initially sought to exclude Waddell’s prior testimony altogether.
However, the court denied Appellant’s motion to exclude Waddell’s prior testimony.
Thereafter, in the following exchange, Appellant requested that the trial court take
judicial notice of Waddell’s prior conviction:
[APPELLANT’S COUNSEL]: Your Honor, would the Court take judicial
15
notice of the impeachable (indiscernible at 2:18:45).7
THE COURT: What’s your position, Counsel?
[THE STATE]: I don't believe that that’s admissible.
THE COURT: I’m going to deny your request, Counsel.
Subsequently, on February 1, 2019, Appellant asked if the court had reconsidered his
request to judicially notice Waddell’s prior conviction in the following brief exchange:
[APPELLANT’S COUNSEL]: Your Honor, I had previously asked the
Court to take judicial notice of Qonta Waddell's convictions. I just had put
all of those true tests into the record that would have been invisible had he
not passed away and I just wanted to ask the Court if there was any
reconsideration on that.
THE COURT: No.
[APPELLANT’S COUNSEL]: Okay.
THE COURT: Thank you.
Contrary to the State’s contention that Appellant did not preserve the issue of admissibility
of Waddell’s impeachable conviction, Appellant sufficiently preserved the issue for review
by raising the issue and subsequently renewing the request. See Rule 4-323(c) (To preserve
an objection to a ruling or order it “is sufficient that a party, at the time the ruling or order
is made or sought, makes known to the court the action that the party desires the court to
take or the objection to the action of the court.”). Accordingly, we proceed to determine
whether the trial court abused its discretion in declining to admit Waddell’s impeachable
conviction.
7
Given the context of the statement, we assume that the indiscernible portion of the
statement was intended to be “prior conviction” or something to that effect.
16
Under Md. Rule 5-806(a), “[w]hen a hearsay statement has been admitted in
evidence, the credibility of the declarant may be attacked, and if attacked may be supported,
by any evidence which would be admissible for those purposes if the declarant had testified
as a witness.” That Waddell’s statement was hearsay is not in dispute. Accordingly,
Appellant was permitted to attack Waddell’s credibility as though Waddell were present
for cross examination. Md. Rule 5-609 provides the rule for admissibility of a witness’s
prior convictions:
(a) Generally. For the purpose of attacking the credibility of a witness,
evidence that the witness has been convicted of a crime shall be admitted
if elicited from the witness or established by public record during
examination of the witness, but only if (1) the crime was an infamous
crime or other crime relevant to the witness’s credibility and (2) the court
determines that the probative value of admitting this evidence outweighs
the danger of unfair prejudice to the witness or the objecting party.
Committee note: The requirement that the conviction, when offered for
purposes of impeachment, be brought out during examination of the witness
is for the protection of the witness. It does not apply to impeachment by
evidence of prior conviction of a hearsay declarant who does not testify.
In this case, the committee note provides salient guidance on the applicability of Rule 5-
609 to Waddell’s prior conviction. It is undisputed that Waddell’s prior conviction was a
per se impeachable offense. Further, it appears that the trial court agreed with the State’s
incorrect assertion that the evidence was not admissible. Moreover, Appellant had not
raised the issue in any prior motion for the court’s consideration. Accordingly, the trial
court ostensibly failed to engage in the appropriate balancing test to determine whether the
prejudice of admitting the conviction outweighed the probative value. In failing to engage
in the appropriate balancing test for admission of the impeachable conviction, the trial court
17
abused its discretion. See Beales v. State, 329 Md. 263, 270 (1993) (Holding that trial
courts are required to make a “preliminary determination of probativeness and potentially
unfair prejudice for all convictions used to impeach credibility.”). Regardless, we hold
that the error in refusing to admit Waddell’s prior conviction was harmless. We explain.
Prior cases have held that non-admission of impeachment evidence is less of a
concern when a jury already has sufficient additional grounds to question a witness’
credibility. See U.S. v. Nelson, 39 F.3d 705, 708 (7th Cir. 1994) (Holding that any error in
limiting the defense’s opportunity to cross examine a witness was harmless where such
limitation “did not deny the defendants the opportunity to establish that the witnesses may
have had a motive to lie; rather, the limitations denied them the opportunity to add extra
detail to that motive.”); U.S. v. Mullah, 503 F.2d 971, 977 (2nd Cir. 1974) (Holding that
trial court did not err in limiting cross examination of State witness where the jury already
had “sufficient evidence concerning [witness’s] credibility to make a discriminating
appraisal of him.”); Cf. Conyers v. State, 354 Md. 132 (1999) (Explaining that any error in
allowing State to impeach defense witness with prior convictions was harmless where jury
was well aware of witness’ incarceration.). In the case sub judice, the jury had ample
reason to question Waddell’s credibility. The jury viewed a recording of Waddell’s prior
testimony. In that recording Waddell claimed that he was high on cocaine when he was
arrested in July of 2003 and interviewed by the detectives – the interview in which he
provided testimony incriminating Appellant. Waddell later recanted that same testimony.
Further, Waddell asserted that he had no memory of the interview and that it was not
uncommon for him to periodically lose his memory. Waddell added that “nine times out
18
of ten, you can make things happen if you cooperate with the police.” Finally, Waddell
stated that when he was a regular drug user, he would have done anything to get out of jail
so he could continue using. We find it difficult to fathom that Waddell’s prior drug related
conviction would sway any juror who, after hearing Waddell’s own statements of his
rampant drug use, lack of credibility, lack of reliability, and motive to lie, found Waddell’s
testimony credible. Thus, we hold that any error in failing to admit Waddell’s prior
impeachable conviction was harmless beyond a reasonable doubt.
In reaching our holding we are mindful of the Court of Appeals decision in Dionas
v. State, 436 Md. 97 (2013). In Dionas, the Court of Appeals stated that “where credibility
is an issue and, thus, the jury's assessment of who is telling the truth is critical, an error
affecting the jury's ability to assess a witness’ credibility is not harmless error.” 436 Md.
at 110 (citing Martin v. State, 364 Md. 692 (2001); Howard v. State, 324 Md. 505 (1991);
and State v. Cox, 298 Md. 173 (1983)). However, our holding in this case does not depart
from the reasoning in Dionas. Here, while credibility of the State’s witnesses was certainly
an important issue, non-admission of Waddell’s prior conviction did not deprive the jury
of the necessary information to thoroughly assess Waddell’s credibility. The jury was
aware of Waddell’s involvement with drugs, as well as his professed lack of credibility and
motive to lie. Conversely, in Dionas, the Court of Appeals found that an error was not
harmless where the trial court precluded cross-examination of a witness regarding his
potential bias, a potential bias which the jury did not have the ability to detect through
additional impeachment evidence. The cases cited by Dionas for the above language are
similarly distinct. See Martin, 364 Md. 692 (Holding error of limiting cross examination
19
of witness’s potential bias was not harmless where the jury heard no other impeachment
evidence implicating witness’s potential bias.); Howard, 324 Md. 505 (Holding error of
erroneously admitting evidence of criminal defendant’s prior conviction was not harmless
where defendant testified to a different version of events than the State presented, and case
largely turned on whom the jury was going to believe.); Cox, 298 Md. 173 (Holding error
of precluding defense from cross-examining victim, concerning a matter relating to
credibility, was not harmless where the jury heard no other evidence which undermined
victim’s credibility.).
Additionally, Dionas states that our harmless error analysis should focus on the
error’s impact on the jury. See Dionas, 436 Md. at 110-11 (“In criminal jury cases where
error has been established, we have considered a number of factors that may have
influenced the jury’s perspective as the arbiters of fact. One such factor is the nature, and
the effect, of the purported error upon the jury . . . [w]e have also considered the jury’s
behavior during deliberations as a relevant factor in the harmless error analysis.”). As
previously explained, the impact of the exclusion of Waddell’s prior conviction on the jury
would be virtually nil considering Waddell’s professed rampant drug use, lack of
credibility, lack of reliability, and motive to lie. Moreover, notes from the jury during
relatively short deliberations, as well as the split verdict, indicate that the jury did not trust
Waddell’s version of events. Waddell testified that Appellant shot William Courts and
James Bowens. However, the jury acquitted Appellant of the second-degree murder of
James Bowens; but convicted Appellant of attempted murder and conspiracy to murder
William Courts – a conviction supported by the testimony of numerous additional
20
witnesses. Before reaching its verdict, the jury sent a note which elucidated this point:
“Based on the law, if we find [Appellant] guilty of attempted murder of William Courts,
does that mean we must find [Appellant] guilty of killing James Bowens?” This note,
along with the jury’s split verdict, indicates that at the very least, the jury did not rely on a
portion of Waddell’s testimony. Accordingly, because the jury had ample ability to fully
assess Waddell’s credibility without admission of his prior conviction and given that the
record indicates that the jury did not rely on Waddell’s testimony, we hold that any error
was harmless beyond a reasonable doubt.
Before proceeding to Appellant’s additional contentions, it is important to add that
Appellant had other potential means of introducing Waddell’s prior conviction which
Appellant did not pursue. In Taylor v. State, the Court of Appeals noted alternative means
of impeaching an unavailable witness:
[T]he unavailability of the declarant will not always foreclose using prior
misconduct as an impeachment tool because the witness testifying to the
hearsay statement may be questioned about the declarant’s misconduct—
without reference to extrinsic evidence thereof—on cross-examination
concerning knowledge of the declarant’s character for truthfulness or
untruthfulness.
Taylor v. State, 407 Md. 137, 163-64 (2009) (Quoting United States v. Saada, 212 F.3d
210, 221 (3rd Cir. 2000)). In the present case, Appellant could have asked about Waddell’s
prior conviction during cross-examination of Det. Snead. The fact that Appellant did not
attempt to elicit Waddell’s prior conviction from Det. Snead is yet another indication that
the value of establishing Waddell’s prior conviction was negligible considering Waddell’s
own statements of unreliability.
21
II. Admission of statements implicating Appellant’s involvement in additional murders.
Appellant contends that the trial court abused its discretion by allowing testimony
which implicated Appellant’s involvement in two other murders. Specifically, testimony
from Eric Horsey,8 which alleged Appellant’s involvement in the murders of Edwin Boyd
and David Courts; and testimony from Detectives Massey and Snead, which according to
Appellant, corroborated Horsey’s testimony relating to Appellant’s involvement in the
murders of Edwin Boyd9 and David Courts. Appellant objected to the testimony at issue,
and thus, the issue of admissibility of that evidence is properly before us on appeal. Before
addressing Appellant’s specific contentions on this issue, a factual account of the testimony
is helpful.
Horsey’s testimony
In a 2007 written statement, Horsey identified Appellant in a photo array. In that
statement, Horsey wrote: “This is Coco. I, Eric Horsey, paid him $10,000 for a murder he
committed for me. The name of the victim is David Courts.”
In his 2010 testimony, Horsey stated that Appellant contacted him two days after
the Incident to tell Horsey that he had just killed David Courts. Further, Appellant told
Horsey that he was with “Bee” (Brian Smith) when “the Port Street guys” drove by in a
Crown Victoria. Appellant and Bee then drove beside the Crown Victoria, and Bee shot
David Courts. Horsey also confirmed in his 2010 testimony that he paid Appellant $10,000
8
See Eric Horsey factual background supra at 5-7.
9
See Edwin Boyd factual background supra at 10-11.
22
for the murder of David Courts, which Appellant divided amongst himself, Bee, and Boyd.
In the same 2010 testimony, Horsey further testified that when Appellant was
arrested, Appellant initiated a three-way call with Horsey and Bee. During that call,
Appellant relayed the charges against himself and Darnell Fields, and said that Boyd had
already talked to the State. Moreover, Horsey testified that, during that same call, Appellant
told Horsey that they “had to get rid of” Boyd. Horsey understood this as a request to kill
Boyd. Horsey testified that he assured Appellant that he “was going to take care of it,” but
that he later told Bee that he would not kill Boyd because Boyd was a juvenile. However,
Horsey testified that Bee said that he would kill Boyd because “it was either [Boyd’s] life
or [Appellant’s] freedom.” Within a week, Bee informed Horsey that he “had some girl
lure him out of the house and had another dude kill him.”
Detectives’ Testimony
During Massey’s and Snead’s direct examinations, the detectives explained that
David Courts was killed on May 30, 2003, on the 900 block of North Collington Ave., and
that his murder involved a Crown Victoria. The detectives also testified that Boyd died on
the same day that Appellant was arrested, just two hours after Appellant had told Det.
Massey he was going to “beat these bodies.”
A. Parties’ Contentions
Appellant contends that the trial court abused its discretion by allowing the
testimony from the detectives and Horsey which implicated Appellant’s involvement in the
murders of Edwin Boyd and David Courts. In support of this contention, Appellant makes
two alternative arguments. First, Appellant argues that the trial court erred by failing to
23
apply – on the record – the three-step analysis for admission of other crimes evidence.
Appellant notes that a trial court’s exercise of discretion must be clearly evinced from the
record; and argues that the record does not reflect that the trial court properly exercised its
discretion. Second, Appellant argues that, assuming arguendo that the trial court did apply
the three-step analysis sub silentio, the trial court nevertheless erred in admitting the
evidence. Specifically, Appellant contends that “there was not clear and convincing
evidence that Appellant was involved in these other crimes,” as required by the second
prong under the special relevance test for admission of other crimes evidence. Moreover,
Appellant contends that the evidence implicating Appellant’s involvement in the two
murders was “substantially more prejudicial than probative.”
In response, the State contends that the trial court properly exercised its discretion
when it allowed testimony implicating Appellant’s involvement in the two additional
murders. The State argues that the testimony implicating Appellant’s involvement in
Boyd’s murder was properly admitted as consciousness of guilt evidence. Moreover, the
State argues that “[e]vidence of [Appellant’s] involvement in David Courts’s murder was
relevant to show [Appellant’s] motive for shooting William Courts.” Further, the State
contends that there was clear and convincing evidence of Appellant’s involvement in both
murders. Specifically, the State notes that Horsey’s testimony – that Appellant told Horsey
that they “had to get rid of Boyd”; that Horsey refused to pay Appellant for William
Courts’s attempted murder; and that Horsey later paid Appellant for David Courts’s murder
– was competent evidence of Appellant’s involvement in both murders. Finally, the State
challenges Appellant’s assertion that the trial court should have explained its reasoning for
24
admitting the evidence on the record. The State argues that the record reflects that the trial
court properly exercised its discretion where the trial court, “after review of [Appellant’s]
motion” on the issue, denied Appellant’s challenge to admission of the evidence.
B. Standard of Review
While evidence of a defendant’s past crimes or wrongful acts is generally
inadmissible, such evidence may be admitted where that “‘evidence is substantially
relevant to some contested issue in the case and is not offered to prove guilt based on
propensity to commit crimes.’” Vaise v. State, 246 Md. App. 188, 207 (2020), cert. denied,
471 Md. 86 (2020) (quoting Darling v. State, 232 Md. App. 430, 462 (2017)).
In Vaise, we reiterated the three-part test for admission of other crimes evidence:
First, the court must determine whether the evidence fits into one or more of
the exceptions in Rule 5-404(b). This is a legal determination. Second, it
must be shown by clear and convincing evidence that the defendant engaged
in the alleged criminal acts. In this regard, we review the trial court’s decision
to determine if there is sufficient evidence to support its finding. Third, the
court must find that the probative value of the evidence outweighs any unfair
prejudice. This determination involves the exercise of discretion by the trial
court.
246 Md. App. at 207–08 (internal quotation marks and brackets omitted) (quoting Darling,
232 Md. App. at 462–63 (quoting from Hurst v. State, 400 Md. 397, 406 (2007); Sifrit v.
State, 383 Md. 116, 133 (2004); and State v. Faulkner, 314 Md. 630, 634 (1989))).
C. Analysis
As an initial matter, we address Appellant’s contention that the trial court failed to
demonstrate, on the record, that it exercised its discretion in denying Appellant’s motion
to exclude the relevant portions of Horsey’s testimony. Notably, when applying Rule 5-
25
404(b), a trial court exercises discretion while weighing the probative value of the evidence
against its prejudicial effect. We review the special relevance of the evidence de novo, and
the sufficiency of the evidence to support that finding for clear error. See Oesby v. State,
142 Md. App. 144, 158-59 (2002) (“Before evidence of ‘other crimes’ may be admitted
against a defendant, a three-step analysis must be undertaken by the trial judge. The first
determination is an exclusively legal one, with respect to which the trial judge will be found
to have been either right or wrong.”); and see State v. Faulkner, 314 Md. 630, 635 (1994)
(“If one or more of the exceptions applies, the next step is to decide whether the accused's
involvement in the other crimes is established by clear and convincing evidence.”).
Appellant cites Streater v. State, for the contention that when a trial court applies
Rule 5-404(b) “it should state its reasons for doing so in the record.” 352 Md. 800, 810
(1999) (emphasis added). However, Appellant’s reliance on Streater is unavailing. In
Streater, the relevant issue involved a trial court’s admission of a protective order into
evidence. Id. That order contained factual findings by a district court judge, in which the
district court judge found that the defendant had committed prior crimes. However, those
prior crimes were unrelated to the crimes the defendant was charged with in Streater. The
defense counsel objected to the inclusion of the full document because the prosecution only
offered the document to show that a protective order had been issued. Moreover, defense
counsel argued that the inclusion of the district court judge’s factual findings was unduly
prejudicial and not offered for any special relevance, given that the prosecution only sought
to show that the protective order had, in fact, been issued. However, the trial court admitted
the document as evidence of the prosecution’s case in chief, without any indication that it
26
had considered – or was aware of – the factual allegations of other crimes contained within
the protective order. Thus, the Court of Appeals held that the record did not demonstrate
that the trial court “carefully assessed the admissibility of the factual findings of other
crimes contained within the protective order.” In fact, the Court of Appeals noted that
“[n]either the judge, the defense attorney, nor the prosecutor ever specifically mentioned
any of the three bad acts contained in the protective order[]” at any point on the record. Id.
at note 5.
Unlike in Streater, in the case sub judice, the trial court was keenly aware of
Appellant’s prior acts implicated in Horsey’s testimony – i.e. murders of Edwin Boyd and
David Courts. The trial court allowed admission of those portions of Horsey’s testimony
which implicated Appellant in the additional murders “after review of [Appellant’s]
motion” on that precise issue. We have previously stated that there is a “strong
presumption that judges properly perform their duties.” Darling v. State, 232 Md. App.
430 (quoting Jones v. State, 178 Md. App. 123, 144 (2008)). For that reason, “[t]he fact
that the record does not reflect whether a trial court conducted [a Rule 5-404] balancing
test does not mean the court did not do so.” Id.; see also Ridgeway v. State, 140 Md. App.
49, 69 (2001) (“It is of no consequence . . . that the trial court did not articulate its reasoning
on the record. In weighing the probative value of other crimes evidence against the
prejudicial effects of such evidence, a trial court is not required to spell out in words every
thought and step of logic in weighing its considerations.”). There is nothing in the record
to rebut the presumption that the trial court fully considered Appellant’s motion under the
three-part test for admission of other crimes evidence.
27
To support the presumption, the record indicates that the trial court fully considered
Appellant’s motion under the three-part test for admission of other crimes evidence. As to
the special relevance prong, the trial court’s closing instructions demonstrate that the court
admitted the “additional murders” testimony because it had special relevance:
You have heard evidence about the murder of David Courts, the murder of
Edwin Boyd, . . . . You may consider this evidence only on the question of
identity, common scheme or plan, preparation, motive, intent, opportunity,
knowledge . . . . [Y]ou may not consider this evidence for any other purpose.
Specifically, you may not consider it as evidence that the Defendant is of bad
character or has a tendency to commit crime.
Accordingly, the trial court did not abuse its discretion by failing to articulate its specific
reasoning for denying Appellant’s motion because the record demonstrates that the trial
court fully considered the issues presented. Thus, we turn to the question of whether the
trial court was legally correct in finding that the hearsay was admissible under a special
relevance category.
Maryland Rule 5-404(b) provides the rule for admissibility of evidence of a
defendant’s other crimes, wrongs, or acts:
(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or
other acts including delinquent acts as defined by Code, Courts Article § 3-
8A-01 is not admissible to prove the character of a person in order to show
action in the conformity therewith. Such evidence, however, may be
admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, common scheme or plan, knowledge, identity, absence of
mistake or accident, or in conformity with Rule 5-413.
Md. Rule 5-404(b). In this case, evidence of Appellant’s involvement in the murder of
David Courts was relevant to show Appellant’s motive for the attempted murder of William
Courts. Namely, the testimony showed that Appellant’s attempt to murder William Courts
28
was motivated by his desire to collect the bounty issued by Horsey against the Courts
brothers. Horsey’s testimony established that Appellant had received payment under the
same bounty. Appellant was not paid after claiming to have killed William Courts because
William Courts survived; however, Appellant was paid after telling Horsey that he “got
rid” of David Courts and Horsey verified that David Courts was deceased. Thus,
Appellant’s receipt of the bounty from Horsey for David Courts’s murder established
Appellant’s motive for killing William Courts – to collect the bounty Horsey had placed
on the Courts brothers.
Moreover, the testimony of Appellant’s involvement in Edwin Boyd’s murder was
relevant to establish Appellant’s consciousness of guilt for the murder of William Courts.
See Conyers v. State, 345 Md. 525, 554 (1997) (Noting that “consciousness of guilt is an
‘other purpose’ that will overcome the presumption of exclusion that is attached to ‘other
crimes’ evidence”; and stating that evidence indicating a murder defendant’s involvement
in the murder of a witness would be admissible as consciousness of guilt evidence). Thus,
we turn to determine whether there was clear and convincing evidence of Appellant’s
statements to Horsey, indicating his involvement in the murders of David Courts and
Edwin Boyd. We hold that there was. We explain.
In Page v. State, we explained our review of a trial court’s finding of clear and
convincing evidence as follows:
Clear and convincing evidence means that the witness to a fact must be found
to be credible, and that the facts to which he has testified are distinctly
remembered and the details thereof narrated exactly and in due order, so as
to enable the trier of the facts to come to a clear conviction, without hesitance,
of the truth of the precise facts in issue. This Court has explained, however,
29
it self-evidently is the trial judge who must be thus persuaded clearly and
convincingly that the prior act occurred, and on appellate review, this Court
does not determine whether we would be persuaded that the act occurred, but
only the legal question of whether there was some competent evidence which,
if believed, could persuade the fact finder as to the existence of the fact in
issue. Therefore, we must determine whether the evidence was sufficient to
support the trial judge's finding.
222 Md. App. 648, 665 (2015) (Internal quotation marks, ellipses, and citations omitted)
(Emphasis added). Thus, our review focuses on whether the State met its burden of
production. The trial court was in the best position to assess the credibility of witnesses
and was persuaded that Appellant did in fact make those statements to Horsey about Boyd
and David Courts. Horsey had direct personal knowledge of Appellant’s statements
pertaining to Boyd and David Courts. Horsey’s testimony was certainly “some competent
evidence which, if believed, could persuade the fact finder as to the existence of the fact in
issue.” Id. Whether this court is convinced by Horsey’s testimony is irrelevant. Cf. Oesby,
142 Md. App. at 165 (At clear and convincing step of 5-404 analysis “[t]he only appellate
concern is whether there was some basis from which a rational fact-finding trial judge
could have concluded that the “other crimes,” in fact, took place.).
As to the corroborative statements made by Detectives Snead and Massey, those
statements were similarly based on their personal knowledge, and did not implicate
Appellant in any crime or other wrongful act. Only when the detectives’ statements are
viewed together with Horsey’s testimony do they tend to implicate Appellant’s
involvement in either murder. The detectives’ testimony enhanced the credibility of
Horsey’s testimony, which Appellant had attacked, and would be specially relevant for the
same purposes as Horsey’s testimony.
30
Finally, while the evidence tending to implicate Appellant’s involvement in the
additional murders certainly carried prejudice, the evidence was highly probative of
Appellant’s motive and consciousness of guilt for the crimes alleged. The trial court was
in the best position to assess the prejudicial impact of the testimony and we see no basis to
disturb the trial court’s determination on appeal. Accordingly, we hold that the trial judge
did not abuse its discretion in allowing Horsey’s testimony, or the detectives’ corroborative
testimony, which implicated Appellant’s involvement in the murders of Boyd and David
Courts.
III. Allowing jury to view video footage of Horsey and Waddell’s prior testimony which
revealed that Appellant had a prior jury trial.
During a preliminary hearing before Appellant’s fifth trial, Appellant requested that
any prior testimony offered by the State be offered in audio format and argued that the
State should not allow any witnesses to reveal that Appellant had been previously tried.
Regarding Horsey’s testimony, Appellant objected to the prejudicial nature of the
video and requested redactions of the phrase “ladies and gentlemen of the jury.” The court
denied Appellant’s general objection to the admission of Horsey’s testimony. As to
Appellant’s request to redact the phrase “ladies and gentlemen of the jury,” the State noted
that Waddell’s prior testimony made similar references and had been twice admitted in
prior trials. Further, the State argued that under Maryland law it is considered unduly
prejudicial to allow references to a prior conviction, whereas references to a prior trial are
considered significantly less prejudicial. After hearing both positions, the trial court denied
Appellant’s request to redact the phrase “ladies and gentlemen of the jury” from Horsey’s
31
testimony. The phrase appeared six times in Horsey’s recorded testimony. While
Waddell’s testimony also indicated that Appellant had a previous jury trial, Appellant
lodged only a general objection to the admission of Waddell’s testimony, without
requesting redaction of specific portions that indicated that Appellant had a prior jury trial.
A. Parties’ Contentions
Appellant contends that the Circuit Court erred when it allowed the jury to view
portions of video recordings – of Horsey’s 2010 testimony and Waddell’s 2005 testimony
– which revealed that Appellant was a defendant in two prior jury trials. Appellant asserts
that “if the State seeks to introduce evidence that conveys to the jury that a defendant has
been previously tried and potentially convicted, the court must—at the very least—engage
in a balancing of probative value and prejudice based on the unique circumstances of the
case. (Citing MD Rule 5-403). However, Appellant asserts that the Circuit Court “made
no record of engaging in such an analysis” and argues that the Circuit Court abused its
discretion by “failing to engage in a balancing of the probative value versus the unfair
prejudice . . . .” Alternatively, Appellant argues that, even if the record is sufficient to
show that the Circuit Court exercised discretion, the Circuit Court “abused its discretion in
admitting the videos without making any effort to limit their prejudicial impact.” Appellant
contends that forecasting to the jury that Appellant had prior jury trials was prejudicial
because “[t]he jury could easily have assumed that because the State had put more than a
decade of time, money, and resources into multiple prosecutions, Appellant must in fact be
guilty of at least some of the charges.” Appellant urges that “[o]nce the court determined
that the prior statements were admissible, it was tasked with ascertaining a means of
32
admission that would carry the least prejudice while not significantly impairing the
probative value of the evidence.” To mitigate the risk of prejudice, Appellant argues that
the Circuit Court could have either “ordered the State to present the testimony in a
transcript with all references to the ‘jury’ redacted[,]” or “could have limited the evidence
to audio with the same redactions.”
B. Standard of Review
Generally, “a trial court’s rulings on the admissibility of evidence are reviewed for
abuse of discretion.” Gordon v. State, 431 Md. 527, 533 (2013). A trial court does not
have discretion to admit irrelevant evidence. State v. Simms, 420 Md. 705, 724-25 (2011)
(“Maryland Rule 5–402 . . . makes it clear that the trial court does not have discretion to
admit irrelevant evidence . . .”). However, “[w]hen the trial judge’s ruling involves a
weighing of both the probative value of a particular item of evidence, and of the danger of
unfair prejudice that would result from the admission of that evidence, we apply the . . .
abuse of discretion standard of review.” Ruffin Hotel Corp. of Maryland, Inc. v. Gasper,
418 Md. 594, 620 (2011) (internal quotations and brackets omitted). Because Appellant
contends that the trial court abused its discretion by “failing to ameliorate” the prejudicial
content of otherwise relevant evidence, we review the trial court’s action for abuse of
discretion. A trial court abuses its discretion when its decision is “well removed from any
center mark imagined by the reviewing court and beyond the fringe of what that court
deems minimally acceptable.” Alexis v. State, 437 Md. 457, 478 (2014) (Quoting Gray v.
State, 388 Md. 366, 383 (2005)).
C. Analysis
33
Appellant’s counsel raised the issue of references to Appellant’s prior trials and
convictions during preliminary objections. The following exchange ensued:
[APPELLANT’S COUNSEL]: Oh, and the references to the prior trial.
What -- that was the reason for the last mistrial.
THE COURT: Yes.
[APPELLANT’S COUNSEL]: I just want to get that out there and try to
straighten that up. So if we could -- I wanted the State to instruct all of its
witnesses to not reference trial, that this should be hearing, proceeding,
certainly nothing about a verdict, certainly nothing about a co-defendant
verdict.
THE COURT: Granted.
[APPELLANT’S COUNSEL]: Okay.
[THE STATE]: And I just want to clarify on that point because I agree with
[Appellant’s Counsel] and I’ve instructed my witnesses to refer to it as
proceedings, not trials. But I want the Court to be aware of Poole v. State and
Coffey v. State, and the citation is 295 Md. 167 and 100 Md. App. 587.
Prejudice is not reference to prior trials. Prejudice is an insinuation that there
has been a previous verdict. I say that, and I -- I’m not playing semantics
here, because there are certain instances in this case where references to prior
trials is inevitable but it’s not that we’re hounding that there was a previous
trial.
THE COURT: When are you going to use that language instead of a [prior
hearing]? . . . Is it a problem?
[THE STATE]: No. I’m going to call them prior hearings.
....
[THE STATE]: But, for example, when we play the previous testimony of
Qonta Waddell, I -- if there’s a necessity for a limiting instruction or a
curative instruction I don’t want [Appellant’s Counsel] to find herself
jumping up and down if anything goes anywhere near a previous trial ‘cause
that’s not the standard.
....
34
THE COURT: Thank you. But before you put on your witnesses you will
inform them[,] they are to use[] proceedings and prior hearings?
....
THE STATE: . . . We’ll have to catch it when it happens and just clarify,
previous proceedings. But even if it’s previous trial, that’s not what triggers
a mistrial.
THE COURT: Thank you, Counsel.
In Belton v. State, 152 Md. App. 623 (2003), we addressed a similar issue where a
defense counsel objected to specific portions of a video recording. In that case, we
explained that
after the circuit court overruled appellant’s general objection to admission of
the tape, appellant did not request a redaction or limitation of the portion of
the tape to be played to the jury. Appellant contended at oral argument that
it was the State’s obligation to limit or redact portions of the tape that
exceeded Thomas’s identification. This contention is without merit, for it is
the obligation of the party seeking redaction to raise the issue to the judge.
Id. at 61. Here, as in Belton, it was Appellant’s obligation to request redaction of specific
portions of the recording, or to request that the recording be offered in audio or transcript
format. Instead, the record reflects that, aside from cursory comments made prior to the
video’s introduction, Appellant did not request that the evidence be admitted only in audio
or transcript format.10 Likewise, Appellant’s only specific redaction request was to redact,
10
During the exchange regarding references to prior trials, Appellant’s Counsel
opined:
[S]o one of the things that I thought would not be a bad idea . . . the video of
Qonta Waddell . . . the State can play the audio. Because you don’t need to
see [Appellant] sitting at the trial table with [his former co-defendant] and all
these lawyers. It only hurts him.
35
from Horsey’s testimony, the phrase “ladies and gentlemen of the jury.” As in Belton,
general objections will not suffice. Thus, our review will be limited to whether the trial
court abused its discretion in declining to redact the phrase “ladies and gentlemen of the
jury” from the video recording of Horsey’s testimony offered by the State.
We decided a similar issue in Brown v. State, 153 Md. App. 544 (2003). In Brown,
the trial court allowed the jury to view a video – over two hours long – of the defendant’s
prior testimony at his previous trial for the same offense. The defense argued that the video
should not have been admitted because it revealed that the defendant had been previously
tried for the same offense. We held that, although the video did reveal that the defendant
had been previously tried for the same offense, admission of the recording was not an abuse
of discretion because the jurors would not have known that the defendant had been
previously convicted. In reaching our holding we stated that
any juror who was awake during the course of the trial would have known
that [the defendant] had been tried previously for the killing . . . . Jurors who
served in the second trial, however, would not have known that [the
defendant] previously had been convicted of any crime connected with [the]
murder. This distinction is crucial[.]
Id. at 569-570. In the present case, as in Brown, jurors would not have known that
Appellant had been previously convicted of the same offense. Instead, the inclusion of the
phrase “ladies and gentlemen of the jury,” would have revealed only that Appellant was
previously tried for the same offense.
Appellant does not cite any case in which a reference to a prior trial, without
36
reference to a prior conviction, was held to be sufficient grounds for a new trial. Instead,
Appellant cites Coffey v. State, 100 Md. App. 587 (1994), as an example of when “a
defendant’s right to a fair trial is irreparably impaired[.]” However, Appellant’s reliance
on Coffey is unavailing. In Coffey, we reversed a conviction because the jury heard trial
testimony which revealed that the defendant had been previously tried and convicted for
the same offense. Unlike Coffey, here, the testimony did not reveal that Appellant was
previously convicted for the same offense.
We cannot say that the trial court abused its discretion in declining to redact the
phrase “ladies and gentlemen of the jury” from Horsey’s recorded testimony. While the
inclusion of that phrase likely alerted the jury that Appellant was previously tried, it did
not reveal whether that trial resulted in a conviction. In the case sub judice, the trial court
ensured that live witnesses would not reference previous trials. Moreover, the trial court
was not, as Appellant contends, “tasked with ascertaining a means of admission that would
carry the least prejudice.” Instead, Appellant was tasked with requesting specific
redactions of portions that carried the risk of undue prejudice. Appellant’s specific request,
to redact the phrase “ladies and gentlemen of the jury” from Horsey’s testimony, even if
granted would not have prevented the jury from learning that Appellant had been
previously tried. Accordingly, we hold that the trial court did not abuse its discretion in
admitting the recorded testimony without redacting the phrase “ladies and gentlemen of
the jury” from the recording.
IV. Testimony regarding Campbell’s statements to detectives.
Appellant’s fourth contention on appeal relates to Broderick Campbell’s statements
37
to police.11 Campbell gave two statements to police: (1) a statement on July 3, 2003, in
which Campbell stated that he was present during the Incident, but didn’t make any
observations; and (2) a statement on July 7, 2003, in which Campbell told police that he
did make observations, gave those observations to police, and stated that he hadn’t been
forthcoming with police in the July 3rd statement because he was scared. In the present
trial, Det. Snead testified about his interviews with Campbell. On direct examination by
the State, Det. Snead testified that he spoke with Campbell on July 3rd and that Campbell
was shown a photo array. Thereafter, during direct examination, the State asked Det. Snead
why detectives brought Campbell in for a second interview:
[THE STATE]: Was Mr. Campbell brought back for a second interview?
[DET. SNEAD]: Yes, he was.
[THE STATE]: And was there -- without discussing the details of the
conversation, was there a reason for a second interview with Mr. Campbell?
[DET. SNEAD]: Yeah. Mr. Campbell re-contacted us and said that there
was more information that he wanted to give that he didn’t give –
[APPELLANT’S COUNSEL]: Objection.
[DET. SNEAD]: -- the first time.
THE COURT: Overruled.
[DET. SNEAD]: He said that there was additional information that he
wanted to give that he didn’t give the first time.
Det. Snead did not provide any other testimony relating to Campbell’s statements on direct
examination. However, on cross examination, Appellant’s counsel asked Det. Snead about
11
See Broderick Campbell factual background supra at 11-12.
38
Campbell’s statements to police:
[APPELLANT’S COUNSEL]: The State asked you why you brought him
back and you characterized it as giving additional information, correct?
[DET. SNEAD]: Yes.
[APPELLANT’S COUNSEL]: You characterized it as he lied.
THE COURT: Is that — what your characterization?
[DET. SNEAD]: I don’t believe I said that, I believe that —
. . . .
[APPELLANT’S COUNSEL]: Was that how you characterized it? Did
you characterize Mr. Broderick Campbell coming back to you and saying on
July 3rd, he lied?
[DET. SNEAD]: I said that on July 3rd — what I wrote is basically saying
what he said. He said that he lied to the investigators because he was scared.
[APPELLANT’S COUNSEL]: And so you wrote in your report — and the
information that you got between the 3rd and the information you got on the
7th was different, right?
[DET. SNEAD]: I wouldn’t say it was different, but there was
supplement[al] information that he provided on the 7th.
[APPELLANT’S COUNSEL]: Supplemental information that
incriminated himself or incriminated other people?
[DET. SNEAD]: He made an identification of Mr. Colkley.
[APPELLANT’S COUNSEL]: He told you that he lied?
[DET. SNEAD]: That was what he said. He said he lied because he was
scared.
In response, on re-direct, the State followed up on the line of questioning initiated by
Appellant’s trial counsel:
[THE STATE]: At some point yesterday we were talking about Broderick
Campbell.
[DET. SNEAD]: Yes, sir.
39
. . . .
[THE STATE]: And I believe [defense counsel] stated to you that
Broderick Campbell admitted to lying (indiscernible) classification?
[DET. SNEAD]: Yes, sir.
. . . .
[THE STATE]: . . . Mr. Campbell, the evening of July 3rd to speak
about the events of May 28th, 2003, correct?
[DET. SNEAD]: Yes, sir.
[THE STATE]: And do you recall — you don’t have to say word for
word what he said but what was Mr. Campbell’s explanation for his
knowledge of what happened in the initial interview?
[DET. SNEAD]: The initial interview, I believe he said he was out there
and - -
[APPELLANT’S COUNSEL]: Objection. Hearsay.
THE COURT: Overruled. You can answer counsel — Detective.
[DET. SNEAD]: Yes, sir. He said he was out there but he didn’t make
any observations.
[THE STATE]: Okay. So, he acknowledged his presence, denied being
an eye witness, is that fair to say?
[DET. SNEAD]: Yes, sir.
[THE STATE]: Okay. And couple days later on July 7th, Mr. Campbell
came back for a second interview, is that fair to say.
[DET. SNEAD]: Yes.
. . . .
[THE STATE]: Mr. Campbell never actually said in the July 7th
interview he lied. His characterization was that he had not said everything
because he was scared.
[DET. SNEAD]: So, he said that he didn’t say everything because he was
scared but toward the end —
THE COURT: Would you let him — Counsel, would you let him testify.
[DEFENSE COUNSEL]: Okay.
THE COURT: Thank you.
[DET. SNEAD]: He said, I lied because I was scared.
. . . .
40
[THE STATE]: All right. Now having reviewed [the transcript of
Campbell’s second interview], do you agree the Mr. Campbell never
actually used the word lied.
[DET. SNEAD]: Right.
[THE STATE]: His words were, he didn’t tell all of it, is that correct?
[DET. SNEAD]: Uh, yes.
. . . .
[THE STATE]: So, Mr. Campbell came back on or about July 7th with
more information than just I was out there and didn’t see anything. Is that
fair to say?
[DET. SNEAD]: Yes, sir.
[THE STATE]: Okay. And the reason why he was coming back a second
day was because according to him he was afraid.
[DET. SNEAD]: Yes.
[THE STATE]: How much more information was Mr. Campbell able to
give you a second interview.
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
[DET. SNEAD]: He was able to give —
[DEFENSE COUNSEL]: Objection, Your Honor. Hearsay. . . .
[PROSECUTOR]: I offer it for the truth.
THE COURT: Overruled.
. . . .
[DET. SNEAD]: Yes, sir. He was able to give a significant amount of
information.
A. Parties’ Contentions
Appellant contends that the Circuit Court erred in allowing Det. Snead to testify
about Campbell’s statements to police. Appellant notes that the prosecutor for the State
said he was offering the Statements “for the truth.” Appellant argues that Campbell’s
statements were inadmissible hearsay and that they violated his right to confrontation
41
“because the statements were testimonial and Appellant was denied the ability to cross-
examine Campbell.” Further, Appellant contends that admission of Campbell’s statements
was not harmless “because they corroborated the testimony of other witnesses who suffered
severe credibility issues.”
In response, the State contends that Det. Snead was allowed to testify about
Campbell’s statements for non hearsay purposes – to explain his personal impression of
those statements. Namely, the State argues that the purpose of Det. Snead’s testimony was
to “ascertain whether Snead’s characterization of Campbell’s explanation as to why
Campbell came forward on July 7 was because Campbell said he lied in the July 3 statement
(as Snead testified on cross), or because Snead interpreted what Campbell said as an
admission by Campbell that he lied in the July 3 statement.” The State notes that the Circuit
Court’s closing instructions “told the jury that Horsey, Boyd and Waddell had given out-
of-court statements that it could consider substantively but did not include Campbell’s July
7 statement as a statement the jury could consider in the same manner.” The State argues
that this showed that the Circuit Court did not believe that Campbell’s statements were
being offered for their truth. Finally, the State argues that even if the statements were
offered for their truth, the Circuit Court did not err in admitting the statements because
Appellant opened the door to the inquiry when Appellant, during cross examination of Det.
Snead, “intimated Campbell lied in his July 3 statement.”
B. Standard of Review
In general, a trial court has broad discretion when deciding on admissibility of
evidence. However, “under the rules of evidence, hearsay rulings are not discretionary[,]”
42
and a trial court must exclude hearsay that does not fall “within an exception to the hearsay
rule excluding such evidence.” See Gordon, 431 Md. at 535. Hearsay is “a statement,
other than one made by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.” Md. Rule 5-801(c). “Whether evidence
is hearsay is an issue of law reviewed de novo.” Parker v. State, 408 Md. 428, 436 (2009).
However, the Court of Appeals has explained that “not all aspects of a hearsay ruling need
be purely legal.” Gordon, 431 Md. at 536. In Gordon, the Court of Appeals explained
A hearsay ruling may involve several layers of analysis. Proponents of the
evidence challenged on hearsay grounds usually argue (1) that the evidence
at issue is not hearsay, and even if it is, (2) that it is nevertheless admissible.
The first inquiry is legal in nature. But the second issue may require the trial
court to make both factual and legal findings.
Id. (Internal citations omitted). Thus, when examining a trial court’s decision to admit
hearsay under an exception, we review that decision for abuse of discretion or clear error
if it involves factual or discretionary determinations.
C. Analysis
We need not decide whether the Det. Snead’s testimony was hearsay in this case
because we hold that the evidence was nonetheless admissible. Assuming arguendo that
Det. Snead’s characterization of Campbell’s statements was hearsay, Det. Snead’s
testimony was nevertheless admissible because Appellant opened the door to the inquiry.
In Conyers v. State, the Court of Appeals explained the “opening the door” exception to
admissibility of hearsay statements as follows:
“Opening the door” is a rule of expanded relevancy; it allows the admission
of evidence that is competent, but otherwise irrelevant, in order to respond to
evidence introduced by the opposing party during its direct examination.
43
Whether the opponent’s evidence was admissible evidence that injected an
issue into the case or inadmissible evidence that the court admitted over
objection, once the “door has been opened” a party must, in fairness, be
allowed to respond to that evidence. In other words, the doctrine makes
relevant what was irrelevant before opposing counsel’s direct examination.
345 Md. 525, 545-46 (internal citations omitted).
Accordingly, when a defendant generates a hearsay issue on cross-examination, the
State is permitted to rebut that issue on redirect with reference to the same alleged hearsay
statement. In Trimble v. State, a defendant objected on hearsay grounds when the State
asked a testifying physician about a non-testifying physician’s previous diagnosis. 300
Md. 387 (1984). The defendant argued that allowing testimony was “tantamount to having
[the testifying physician] testify as to [the non-testifying physician’s] opinion . . . .” Id. at
402. However, the Court of Appeals held that the testifying physician’s testimony was
admissible because the defendant had “opened the door to such testimony by eliciting from
[the testifying physician] the inference that [the non-testifying physician] had prescribed
Thorazine” for the defendant because the defendant was psychotic. Id. Thus, the Court
reasoned that “[d]efense counsel, having created the issue, cannot now be heard to
complain that the State sought to rebut its significance.” Id. at 403. As in Trimble, in the
present case, Appellant generated the issue of Campbell’s truthfulness to police – and Det.
Snead’s characterization of the same – and the State was permitted to rebut its significance
by allowing Det. Snead to explain his characterization with reference to Campbell’s
interviews.
In the case sub judice, the State was responding to an issue Appellant generated –
Appellant’s assertion that Campbell said he lied to police in his first interview. In doing
44
so, the State sought to explain the reason for Campbell’s second interview with police, and
Det. Snead’s understanding of that reason. The Circuit Court acted within its discretion in
allowing the State to rebut Appellant’s assertion that Campbell lied to police in his first
interview. Accordingly, we hold that the Circuit Court did not abuse its discretion in
allowing Det. Snead to testify about Campbell’s statements to police.
V. Prosecutor’s Statements during closing argument and rebuttal.
A. Parties’ Contentions
Appellant first contends that the Prosecutor representing the State made several
impermissible statements during the State’s closing argument and rebuttal. First, Appellant
argues that the State impermissibly vouched for the credibility of Jermaine Lee by
commenting during closing argument “that Lee’s testimony was ‘real,’ ‘raw,’ and
‘pure[.]’” In response, the State asserts that “Maryland courts have []squarely held that
although vouching for a witness’s credibility is improper, ‘[t]he rule against vouching does
not preclude a prosecutor from addressing the credibility of witnesses in closing
argument.’” (Quoting Small v. State, 235 Md. App. 648, 698 (2018), aff’d on other
grounds, 464 Md. 68 (2019)).
Second, Appellant contends that, during rebuttal, the State “vouched for the
unimportance of the witnesses that the State failed to call, and implicitly commented on
facts not in evidence.” Namely, when Appellant noted during closing argument that the
State did not call multiple witnesses who were involved in the Incident, the State rebutted
by noting that “the defense can call witnesses if they want to.” Following Appellant’s
overruled objection, the State clarified that “[i]t’s [the State’s] burden of proof, [we] have
45
to prove the case beyond a reasonable doubt[]”; but continued to say that “if the insinuation
is that we didn’t call these people but there’s something important that they have to say, it
would have come out in this trial.” Appellant argues that this last statement by the State
prosecutor “personally vouch[ed] for [the State’s] selection of evidence and convey[ed] the
unimportance of facts not in evidence.” Moreover, Appellant argues that the prosecutor’s
statement shifted the burden of proof by “invit[ing] the jury to hold Appellant responsible
for the absence of witnesses.” In response, the State contends that the prosecutor’s
statements did not, as Appellant claims, argue facts not in evidence or improperly shift the
burden of proof. In support, the State notes that the Court of Appeals has held that it is
appropriate for a prosecutor to remind jurors that a defendant has the right to compulsory
process and could have subpoenaed witnesses after a defendant argues that such witnesses
were missing from the prosecutor’s case. (Citing Mitchell v. State, 408 Md. 368, 368-69
(2009)). Further, in response to Appellant’s contention that the State impermissibly shifted
the burden of proof, the State argues that the prosecutor’s statement – that if the witnesses
Appellant referenced in closing had any important information they would have been called
to testify – was “no more than rhetorical flourish.” The State argues that, because “reversal
is only required where it appears that the remarks of the prosecutor actually misled the jury
or were likely to have misled or influenced the jury to the prejudice of the accused,”
reversal is inappropriate here because the prosecutor’s statement was not likely to have
misled or influenced the jury to the prejudice of Appellant.
Finally, Appellant argues that the State “encouraged the jury to decide the case
based on emotion.” Specifically, Appellant refers to the prosecutor’s statements that the
46
jury could not “fix [the] situation [because a] man is dead[,]” but that “the message that the
[jury] need[ed] to send to [Appellant] is that this kind of activity will not be tolerated.” In
response, the State asserts that “[r]eminding the jurors of their responsibility is not an
invitation to disregard their oaths.” Likewise, the State argues that the prosecutor’s
statements were not an appeal to emotion, but simply a response to defense counsels’
statement that the jury “ha[d] all the power,” and that the prosecutor was reminding that
jury that such power came with a “responsibility.”
B. Standard of Review
It is well settled that “a trial court has broad discretion when determining the scope
of closing argument.” Cagle v. State, 462 Md. 67, 75 (2018) (Citing Ware v. State, 360
Md. 650, 682 (2000)). In Carroll v. State, 240 Md. App. 629 (2019), we elaborated on the
discretion of the trial court in determining the scope of oral argument:
What exceeds the limits of permissible comment or argument by counsel
depends on the facts of each case. Thus, the propriety of prosecutorial
argument must be decided contextually, on a case-by-case basis. Because a
trial court is in the best position to evaluate the propriety of a closing
argument as it relates to the evidence adduced in a case, the exercise of its
broad discretion to regulate closing argument will not be overturned unless
there is a clear abuse of discretion that likely injured a party.
Carol, 240 Md. App. at 663 (internal citations and quotation marks omitted).
Moreover, a trial court exercises such discretion with the understanding that “a party
holds great leeway when presenting their closing remarks.” Cagle, 462 Md. at 75.
C. Analysis
Appellant first contends that the State prosecutor impermissibly vouched for the
credibility of Jermaine Lee when he characterized Lee’s testimony as “real,” “raw,” and
47
“pure.”12 We disagree. In Small v. State, we explained that “although vouching for a
witness’s credibility is improper, ‘[t]he rule against vouching does not preclude a
prosecutor from addressing the credibility of witnesses in closing argument.’” 235 Md.
App. 648, 698 (2018) (Quoting Sivells v. State, 196 Md. App. 254, 277 (2010)). In Spain
v. State, the Court of Appeals discussed the limits of vouching for a witness during closing
arguments as follows:
No one likely would quarrel with the notion that assessing the credibility of
witnesses during a criminal trial is often a transcendent factor in the
factfinder’s decision whether to convict or acquit a defendant. During
opening and closing arguments, therefore, it is common and permissible
generally for the prosecutor and defense counsel to comment on, or attack,
the credibility of the witnesses presented.
....
Attorneys . . . feel compelled frequently to comment on the motives, or
absence thereof, that a witness may have for testifying in a particular way, so
long as those conclusions may be inferred from the evidence introduced and
admitted at trial. See, e.g., U.S. v. Walker, 155 F.3d 180, 187 (3rd Cir.1998)
(finding that “where a prosecutor argues that a witness is being truthful based
on the testimony given at trial, and does not assure the jury that the credibility
of the witness based on his own personal knowledge, the prosecutor is
engaging in proper argument and is not vouching”).
386 Md. 145, 154-55 (2005). Here, the prosecutor’s comments about Lee’s testimony did
not constitute assurances based on the prosecutor’s personal knowledge, nor did they
exceed the permissible bounds of the prosecutor’s ability to comment on the credibility of
the witnesses presented. While his use of the term “pure” is interesting, he is not vouching
for the testimony.
12
See Jermaine Lee factual background supra at 9-10.
48
Next, Appellant contends that the State prosecutor vouched for the unimportance of
the witnesses that the State failed to call, and implicitly commented on facts not in
evidence, with the following comments on rebuttal:
[THE STATE]: …And this comment about all these other witnesses that the
State should have produced. You saw that the defense can call witnesses if
they want to.
[APPELLANT’S COUNSEL]: Objection.
THE COURT: Overruled.
[THE STATE]: They called Gregory Steward, that’s a police personnel.
Now let me just clarify something, the burden is on me, right. It’s my burden
of proof, I have to prove the case beyond a reasonable doubt. I’m not saying
they have to do anything. They could sit there all day and do nothing. What
I’m saying is if the insinuation is that we didn’t call these people but there’s
something important that they have to say, it would have come out in this
trial. That’s my point.
In Mitchell v. State, the Court of Appeals held that when a defendant “opens the door” by
calling attention to the failure for the State to call witnesses, the State is permitted to
respond by calling attention to the defense’s ability to call those same witnesses to testify.
408 Md. 368, 387-88 (2009). Accordingly, in the case sub judice, when Appellant
commented on the failure of the State to call certain witnesses, the State was permitted to
note that Appellant could “call witnesses if [he] want[ed] to.”
Conversely, the State prosecutor went beyond simply noting the defense’s subpoena
power when he commented that if the missing witnesses had “something important that
they have to say, it would have come out in this trial.” Thus, we must decide whether the
prosecutor’s comment was more properly characterized as “prejudicial or rhetorical
flourish.” See Degren v. State, 352 Md. 400, 341 (1999) (Noting that the determination of
49
whether a prosecutor’s comments were prejudicial, rather than simply rhetorical flourish,
lies within the sound discretion of the trial court; and that “an appellate court should not
reverse the trial court unless that court clearly abused the exercise of its discretion and
prejudiced the accused.”). Here, the trial court clearly viewed the prosecutor’s statement
as a rhetorical flourish. Although the comment did exceed the permissible bounds of
rebuttal, the fact that the prosecutor prefaced his comment with the proper articulation of
the burden of proof and production helped to ameliorate the potential prejudice of the
prosecutor’s statements. While that alone is not sufficient to cleanse any potential
prejudice, the prosecutor’s remark was isolated – not further compounded – and in response
to an issue raised by Appellant. We cannot say that the trial court clearly abused its
discretion in allowing the comment to stand as a rhetorical flourish. Accord Hill v. State,
355 Md. 206, 208 (1999) (“Even when a clearly improper remark is made, a mistrial is not
necessarily required.”). The trial court was in the best position to assess the potential
prejudice of the prosecutor’s comment, and we will not disturb the trial court’s
determination on appeal.
Finally, we address Appellant’s contention that the State “encouraged the jury to
decide the case based on emotion.” Namely, Appellant takes issue with the following
portion of the State’s rebuttal:
[THE STATE]: . . . [Defense counsel] talked about these other systems. She
talked about child support. I want you to ask yourself what criminal justice
is.
[APPELLANT’S COUNSEL]: Objection.
THE COURT: Overruled.
50
[THE STATE]: I want you to ask yourself. Because for a brief moment in
time, as she said, you’re the ones who are going to have all the power. I think
justice is taking something wrong and making it right.
[APPELLANT’S COUNSEL]: Objection.
THE COURT: Overruled.
[THE STATE]: But how do you do this. This isn’t a theft case where
something got stolen and you just pay it back. It’s not a broken window
where you go buy a new one. This is somebody’s life. And the sad reality is
you can’t fix it. You cannot fix this situation. A man is dead, --
[APPELLANT’S COUNSEL]: Objection.
[THE STATE]: – he’s not coming back.
THE COURT: Overruled.
[THE STATE]: So I want you to ask yourself what this means and I think
the answer is responsibility. I think the message that the twelve of you need
to send to [Appellant] is that this kind of activity will not be tolerated.
[APPELLANT’S COUNSEL]: Objection to message, Your Honor.
THE COURT: Overruled.
[THE STATE]: These actions have consequences and I’m asking you to
deliver them.
Appellant likens this case to Hill, 355 Md. 206. In Hill, the prosecutor for the State
repeatedly – in opening and closing arguments – stated that the jury needed to “send a
message to protect [their] community.” Id. at 211. The prosecutor commented that the
jury needed to do the “thing that protects all of us and keeps this community safe.” Id.Further the prosecutor asserted that the defendant would “go back and tell his cronies and
buddies about what is going on here today.” Id. at 212. The prosecutor continued to tell
51
the jury that their community was “in a crisis,” even going so far as to say “[p]eople wonder
why we can’t get 4–star restaurants here.” Id. The prosecutor then answered that it was
because of “[p]eople like [the defendant].” Id. Finally, the prosecutor finished with a series
of loaded questions: “Will [the defendant] be held accountable, or is it okay to say, do what
you want? It’s your community. No, it’s not your community; it’s our community. This is
your turn to do something about it.” Id.The prosecutor’s statements in the present case seem a far cry from the prejudicial
statement’s allowed in Hill. Here, the prosecutor spoke of justice as it related to the crime
at issue; and spoke of the jury’s responsibility in response to Appellant’s closing remark
that the jury had “all the power.” Conversely, in Hill, the prosecutor appealed to the jury’s
concern for their community and the potential effect their decision would have on the safety
and amenities of their community in the future. Thus, we do not view Hill as applicable to
the facts of this case.
Notwithstanding the absence of any appeal to the jury’s interest in the safety of their
community, Appellant cites language from Lee v. State, 405 Md. 148 (2008). Lee involved
a series of comments by a prosecutor which, like the comments in Hill, appealed to the
jury’s interest in the safety of their community.13 Id. at 139. After holding that the
comments were improper, the Court of Appeals opined that
13
In one such comment, the prosecutor in Lee stated:
Do the residents of that area have the right to be able to be safe in their
environment? I ask and those residents ask that you teach this defendant . . .
that disputes aren’t settled by the blast of a gun, teach the defendant that
pulling a trigger doesn’t make you a man, it makes you a criminal . . . .
52
[e]ven if the prosecutor’s comments were directed such that the jurors were
asked to teach [the defendant] a lesson, and not to send a message to the
entire community, these comments were improper because they asked the
jury to view the evidence in this case, not objectively, but consonant with the
juror’s personal interests.
Id. at 140. We do not view this language as dispositive given the crucial distinction
between the prosecutor’s comments in this case and the comments present in Hill and Lee.
In both Hill and Lee, the prosecutors asked the jury to decide the case in the manner that
was best for the safety of their community. In both cases, the prosecutor essentially asked
the jury to use their decision to “clean up the streets.” In Lee, while the prosecutor may
have asked the jury to send a message to the defendant, not the community at large, the
prosecutor did so in the context of keeping their community safe.
Here, the prosecutor made no such appeal to community impact or community
safety in connection to the jury’s decision. The language in Lee which Appellant relies
upon seems to suggest that an appeal to a jury’s interest in a safe community is not cured
by a subsequent request that the jury send a message to the defendant. However, it does
not necessarily follow that any request for a jury to send a message to a defendant is thereby
improper absent any appeal to the jury’s interest in a safe community. The determination
depends on the facts and circumstances of the case. In the present case, while the
prosecutor did ask the jury to send a message to the defendant, the prosecutor did not appeal
to the jury’s interest in a safe community.
Id. at 158.
53
This case does not involve the type of prejudicial appeals to the jury present in either
Hill or Lee. Moreover, the prosecutor’s comments related to “justice,” and how it could
be accomplished in the case before the jury. This is yet another form of rhetorical flourish
that a prosecutor has leeway to pursue during closing arguments. Thus, we hold that the
trial court did not abuse its discretion in allowing the prosecutor’s comments during closing
argument.
VI. Unpropounded voir dire question asking whether prospective jurors had strong
feelings about illegal drugs.
A. Parties’ Contentions
In his final issue raised on appeal, Appellant contends that the trial court erred by
declining to propound his proposed voir dire question which sought to ask whether
prospective jurors had strong feelings about drugs. Appellant argues that the proposed
question was directed at uncovering juror biases related to the collateral drug related
matters underlying the murder charge, and that failure to ask the question constituted
reversible error.
In response, the State initially argues that Appellant did not properly preserve the
issue for appeal, and even if he did, he waived any right to raise the issue after his
unqualified acceptance of the jury as empaneled at the close of voir dire. Moreover, the
State notes that Appellant was not charged with any drug related crime. Accordingly, the
State contends that, because Appellant’s proposed question was not targeted at uncovering
bias relating to the crimes charged, the trial court did not err in declining to propound
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Appellant’s question.
B. Standard of Review
“An appellate court reviews for abuse of discretion a trial court’s decision as to
whether to ask a voir dire question.” Pearson v. State, 437 Md. 350, 356 (2014) (citing
Washington v. State, 425 Md. 306, 314 (2012)). Because Maryland employs a “limited
voir dire” process “a trial court need not ask a voir dire question that is ‘not directed at a
specific cause for disqualification or is merely fishing for information to assist in the
exercise of peremptory challenges.’” Pearson, 437 Md. at 357 (internal quotation marks
and brackets omitted) (quoting Washington, 425 Md. at 315).
C. Analysis
During voir dire, Appellant objected to the court’s refusal to propound certain
questions during the following exchange:
[APPELLANT’S COUNSEL]: We would like the Court to ask . . . [h]as
anybody been a victim witness, convicted of a crime or any other experience
in the criminal justice system that would affect your ability to sit fairly and
impartially.
....
. . . I also wanted the Court to ask it in more plain language. Does anybody
have any such strong feelings about guns, drugs or violence? The way the
Court phrased it was the charges and it’s really the topic that we’re trying to
get at. So that’s concerning to me if people are not highly educated or don’t
understand use of a handgun or wear, carrying, transporting. It’s really just,
do you have strong feelings about guns and drugs because that’s what this
case is about. And so, rephrasing it in a way that the average person would
understand.
Those are our objections . . . .
THE COURT: Thank you and I’ll overrule the objections. Thank you.
[THE STATE]: Your Honor, may I be heard on just two points?
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THE COURT: Yes.
[THE STATE]: The question about the victim of the crime, witness to a
crime, family members, victim, witness, I think that question has to be asked
and the State would join in the request. . . . And then [Appellant] counsel’s
request to specifically ask about strong feelings about guns. The drug part, I
don’t care about that, but guns I think also has to be asked. So I would join
in that.
....
[APPELLANT’S COUNSEL]: I don’t agree with counsel that the Court
has to ask the victim witness question. I think the Court has to ask the strong
feelings question. So there’s two things; one is how we ask the strong
feelings question and two, whether the Court has to ask the victim witness.
Candidly, I don’t think the Court is instructed, . . . and I don’t believe that
the Court absolutely has to. We think in an abundance of caution, it’s a good
question to ask especially in this jurisdiction. I know the Court has to ask
the strong feelings question. And I think what we’re both saying, counsel
and the State are joining in, I don’t know that the strong feelings question,
the way it was phrased, reaches the issue the way the case law would require
it to.
THE COURT: Two of them have to be always asked; the strong feelings
about guns and have any member of the jury panel’s family member or close
friends ever been a witness for the State in a criminal case, been convicted
of a crime, or been a victim of a crime. So that always has to be there.
....
I’m going to ask those two questions. . .
It is clear from this exchange that the trial court was concerned with narrowing the “strong
feelings” questions to questions that directly related to the crimes charged. Because
Appellant was not charged with any drug related offenses, the trial court declined to ask
prospective jurors whether they had strong feelings about drugs. Regardless, Appellant
contends that the question was necessary because “drug distribution was inextricably
linked to the State’s theory of the case.”
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In Pearson v. State, the Court of Appeals explained the two categories of mandatory
voir dire questions as follows:
On request, a trial court must ask a voir dire question if and only if the voir
dire question is reasonably likely to reveal specific cause for disqualification.
There are two categories of specific cause for disqualification: (1) a statute
disqualifies a prospective juror; or (2) a collateral matter is reasonably liable
to have undue influence over a prospective juror. The latter category is
comprised of biases directly related to the crime, the witnesses, or the
defendant.
437 Md. 350, 357 (2014) (internal quotations, citations, and brackets omitted). Appellant
argues that his proposed question, asking whether prospective jurors had strong feelings
about drugs, was mandatory under the latter category. We disagree.
In Pearson, the Court of Appeals ultimately held that “on request, a trial court must
ask during voir dire whether any prospective juror has ‘strong feelings’ about the crime
with which the defendant is charged.” 437 Md. at 363. Appellant insists that the present
case was inextricably linked to drugs because “State’s evidence painted Appellant as a
player who was involved in a war between two rival drug-distribution organizations, with
the rivalry providing the motive for the murder.” Additionally, Appellant notes that Horsey
testified that Appellant “bought drugs from him shortly before the shooting on Port Street
and continued to buy drugs from him until he was arrested.” This case certainly included
references to drugs. However, those references did not specifically relate to any of the
crimes with which Appellant was charged. Accordingly, Appellant’s proposed question
was not within the universe of voir dire questions which a trial court, on request, must ask.
We therefore reject Appellant’s claim that the trial court erred as a matter of law in
declining to propound the question.
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Thus, because Appellant’s proposed voir dire question was not related to jurors’
strong feelings about the crime with which Appellant was charged, we hold that the trial
court did not err in declining to propound Appellant’s proposed voir dire question.
CONCLUSION
In sum, we hold: (1) the trial court erred in declining to take judicial notice of
Waddell’s prior conviction, but that error was harmless beyond a reasonable doubt; (2) the
trial court did not abuse its discretion in allowing specially relevant testimony which
implicated Appellant’s involvement in two additional murders; (3) the trial court did not
abuse its discretion in allowing the jury to view footage of Waddell and Horsey’s prior
testimony without redacting the phrase “ladies and gentlemen of the jury”; (4) the trial
court did not abuse its discretion by allowing Det. Snead to testify to statements made by
Campbell; (5) the trial court did not abuse its discretion by allowing the challenged
statements, made by prosecutors for the State during closing argument/rebuttal; and (6) the
trial court did not abuse its discretion by declining to propound Appellant’s proposed voir
dire question asking whether prospective jurors had strong feelings about illegal drugs.
JUDGMENT OF THE CIRCUIT COURT
FOR BALTIMORE CITY AFFIRMED;
COSTS TO BE PAID BY APPELLANT.
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