178 A.3d 643
Md. Ct. Spec. App.2018Background
- On December 19, 2012, Nicoh Mayhew was murdered outside his mother's apartment; his two-year-old son was wounded. Brian Mayhew was a suspect because Nicoh was to testify against him in earlier murders (Sean Ellis and Anthony McKelvin).
- Brian Mayhew was jailed awaiting trial for the Ellis/McKelvin murders and placed in visitor contact with Nicoh in November 2012; after that visit Nicoh appeared frightened and kept his child close.
- Mayhew placed clandestine jailhouse calls (via a third-party conduit) to Stanley Winston and Anthony Cannon, using coded language and another detainee’s PIN; recordings and voice identifications, cell‑tower records, texts, and surveillance linked the defendants to planning and proximity to the murder.
- Defendants were tried jointly (first trial resulted in a mistrial; retrial produced convictions for first‑degree murder, conspiracy, witness intimidation, assault, and related counts) and received lengthy sentences.
- On appeal, defendants challenged severance, admission of other‑crimes evidence (Ellis/McKelvin murders), authentication and hearsay admissibility of jailhouse calls, denial of mistrial after a recorded excerpt was played, certain closing argument remarks, and sufficiency of evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Severance of co‑defendants | State: joinder appropriate; evidence relevant and any non‑mutually admissible evidence could be limited by instruction or redaction | Cannon/Winston: evidence of Ellis/McKelvin (only implicating Mayhew) prejudiced them and warranted severance | Denial affirmed; court applied correct multi‑defendant test (not McKnight per se) and gave broad limiting instruction that obviated unfair prejudice |
| Admission of other‑crimes (Ellis/McKelvin) evidence | State: evidence relevant to motive, plan, and explains why Nicoh was targeted | Cannon: Rule 5‑404(b) should exclude Mayhew’s prior murders as unfair to co‑defendants | Affirmed; 5‑404(b) protects actor whose other acts are offered to show propensity — co‑defendants not entitled to that protection; Rule 5‑403 balancing covers co‑defendant prejudice |
| Authentication of jailhouse call recordings | State: voice‑identification witnesses sufficed to authenticate recordings | Defendants: State should have called private vendor or eliminated tampering possibility | Affirmed; minimal authentication standard met by witnesses identifying voices — need not rule out every theoretical fabrication |
| Co‑conspirator hearsay (Rule 5‑803(a)(5)) / plain error | State: clandestine back‑channel communications establish conspiracy in existence at first communication | Defendants: State failed to prove when conspiracy began; issue not preserved; request plain‑error review | No plain error; preserved argument absent and record/transcripts lacking specifics; even on merits evidence supports that the conspiracy existed by the first clandestine call |
Key Cases Cited
- State v. Hines, 450 Md. 352 (2016) (framework for joinder/severance and handling non‑mutually admissible evidence among co‑defendants)
- McKnight v. State, 280 Md. 604 (1977) (joinder/severance rule for multiple charges against a single defendant)
- Hurst v. State, 400 Md. 397 (2007) (three‑part test for admissibility of other‑crimes evidence under Rule 5‑404(b))
- Faulkner v. State, 314 Md. 630 (1989) (other‑crimes evidence relevance and balancing test)
- Puckett v. United States, 556 U.S. 129 (2009) (federal plain‑error standard referenced by Maryland courts)
- Zafiro v. United States, 506 U.S. 534 (1993) (no automatic right to severance; trial court discretion in limiting prejudice from joinder)