*1
v. Mаryland. STATE 27, Sept. Term, 1998. No. Appeals Maryland. Court of
May 1999. *8 Braudes, E. (Stephen R. Asst. Public Defender Michael Baltimore, Harris, Defender, brief), appellant. on Public
141 Lisie, (J. Annabelle L. Atty. Curran, Jr., Asst. Gen. Joseph Gen., brief), Atty. Baltimore, for appellee. BELL, C.J.,
Argued before ELDRIDGE, RODOWSKY, CHASANOW, RAKER, WILNER and CATHELL, JJ.
CHASANOW, Judge. Conyers,
Clarence (Appellant) Jr. was convicted in the Circuit Court for County murder, Wicomico of premeditated murder, felony first-degree burglary, robbery deadly with a weapon, attempted robbery with a deadly weapon, robbery, attempted robbery, and use of a handgun commission a crime of violence respect with to Wanda Johnson. In the same proceeding, Appellant was convicted of premeditated murder and use of handgun in the commission of a crime of violence as to Lawrence Bradshaw. Appellant was sentenced to death for the murder Johnson life without the possibility of parole for the murder of Bradshaw. On direct appeal, this Court reversed burglary conviction and set sentence, aside the death remanding the case for a new sentencing proceeding accordance with Maryland Code (1957, 1996 Repl.Vol., 27, § 1998 Supp.), Article 413.1 We affirmed the other judgments. Conyers v. (1997)(hereinafter ”). A.2d I “Conyers
On January 26-28, 1998, 17 and January the Circuit Court for Wicomico County, the Honorable D. William Simpson presiding with a jury as requested by Appellant, conducted the new capital sentencing proceeding. Appellant was again sentenced to death for the Wanda Johnson murder. This appeal comes to this pursuant (1957, Court to Md.Code Repl.Vol.), § Art. 414. Appellant presents the following twelve issues for review: indicated,
1. Unless statutory otherwise all Maryland references are to (1957, Repl.Vol., Code Supp.), Article 27. *9 hearing a was of fair Appellant deprived 1. Whether testimony regard- Philip of Detective Marll’s because Charles Johnson. witness ing prosecution the di- erroneously the trial court restricted 2. Whether Rogers. Arthur of defense witness rect examination the di- erroneously restricted 3. the trial court Whether MeLee Ventura examination of defense witnesses rect Spencer. Eric jury erroneously instructed the 4. the trial court Whether mercy sympathy circumstance of mitigating that a based on evidence. must be to admit erroneously court refused 5. Whether trial Grossman Professor Steven proffered requested erroneously propound refused to testimony. his regarding instruction jury hearing fair Appellant deprived 6. Whether Gibson purported- victim witness Victoria impact when Appellant previously to the had ly conveyed for the of Wanda Johnson. been sentenced murder “other erroneously court admitted 7. trial Whether evidence, Monica testi- consisting crimes” Wilson’s violence. engaged domestic mony Appellant erroneously Appellant’s 8. the trial court denied Whether had been evidence that preclude motion of the murder Lawrence Bradshaw. convicted erroneously photo- court admitted 9. trial Whether crime of Wanda Johnson and the scene. graphs in per- plain 10. the trial court committed error Whether Arthur impeach the State to defense witness mitting for first second- with convictions Rogers prior sexual assault. degree erroneously Appellant’s
11. the trial court denied Whether state- prevent motion to introduction of a .38 caliber hand- regarding ment to Monica Wilson gun.
12. death Maryland’s Whether statute is unconsti- penalty
tutional. facts, Following summary pertinent of the we shall address the above issues seriatim.
I. BACKGROUND *10 The facts for underlying Appellant’s conviction the murder I, opinion Wanda Johnson were set forth in our in Conyers supra: 21, 1994,
“At approximately p.m. Friday, 9:35 on October Wilson, estranged girlfriend, Monica went to mother, Johnson, visit her at Wanda the home Ms. Johnson husband, shared with her Elwood Johnson. Ms. Wilson had just with at spoken evening, her mother 9:00 p.m. her mother had to agreed babysit for Ms. Wilson’s son. with Arriving Ms. at the Wilson Johnson her home was cousin, Carla Clinton. home,
As two women Johnson approached they saw looking someone outside a through second floor bed- and, room door, window. The women knocked on the they it, waited someone to open they through saw a a man walking window down the stairs. The women saw this man turn off lights inside house down duck as if being to avoid seen. The two women walked to a back door and knocked on it. The women heard sounds a struggle, commotion,’ described as ‘a ‘tussling’ and ‘fighting,’ from coming inside the house. Then Ms. began Johnson to scream, a and window on the second floor broke over the
women’s heads.
The women two to the a fled home of relative who lived nearby and called way On the police. the relative’s house, Wilson Ms. noticed a car parked across the street from her mother’s house. The car resembled one that Appellant sometimes borrowed from his former girlfriend child, and mother of his Meyers. Debra Upon returning home, the Johnson Ms. Wilson was informed police that her mother was dead. into of forced the Johnson signs entry no There were ' was found the master body
home. Wanda Johnson’s head, once had shot three times bedroom. She been back, in the was Ms. Johnson’s and once arm. It money her wallet. a small amount keep custom Furthermore, to Ms. Johnson earli- spoke when Ms. Wilson p.m., Ms. Johnson evening, approximately er that 9:00 wallet, open had Ms. Johnson’s twenty said that she dollars. bedroom; her in the master there atop was found dresser money in the wallet. was no den, open, a forced
In the a door to closet had been lock hasp The closet door had a and a on revealing safe. lock out of security, hasp pried it for but the had been Pulling hasp access jamb gain the door closet. fall doorjamb splinters to floor out of the had caused closet was closed. the closet. The safe inside the around day his mur- the safe the after wife’s opened Mr. Johnson n ' der; it contained fifteen dollars. - Clinton artist on a- day, police next Ms. worked with *11 inside the man she had seen on the staircase the sketch of Ms. evening home the before. Wilson was asked Johnson the that had been made based Ms. look at sketch had to the Appellant, who come description. Clinton’s company, took the keep station to Ms. Wilson sketch police it, telling had chance to see the away before Ms. Wilson a Ms. Wilson police upset that the sketch would her. When sketch, a see she did not police had chance to the finally man de- immediately identify Lawrence Bradshaw photo in the a identification of picted sketch. She made man, for a another who was arrested and incarcerated brief however, that agreed, a result. Ms. later time as Wilson Lawrence police sketch looked like Bradshaw. 23,1994,
Shortly approximately after 1:00 a.m. on October Johnson, after of Lawrence Brad- 27 hours the murder Ms. shaw shot in the 4300 block McDowell Lane. This was area, Mey- in Lansdowne near Debra street located in three ers’s home. Mr. Bradshaw had been shot times head, back, arm, in once in the and once once Trauma, finger. Mr. Bradshaw was taken to Shock where he following day.” died the I, 534-36,
Conyers Md. at A.2d at 785-86. Johnson, As to Appellant premeditated was convicted of murder, murder, first-degree felony burglary, with a robbery deadly robbery weapon, attempted deadly weapon, with robbery, attempted robbery, and handgun use of a violence, commission of a crime of and sentenced to death. Bradshaw, respect Appellant With was guilty found murder of a premeditated and use the commission handgun violence, aof crime of life parole. and sentenced to without appeal, On Court found the evidence was insufficient to sustain burglary conviction of Johnson’s home, but remaining sustained the convictions. Regarding sentencing, held portions Appellant’s juve- we that certain nile record that were contained in pre-sentence investiga- (PSI) tion report should not have been presented to the because the material was “inflammatory highly considered I, prejudicial.” Conyers 345 Md. at at A.2d 799. Consequently, Appellant granted sentencing a new hear- ing.
At the second capital sentencing hearing, during the State’s (no Johnson victim, Charles relation Wanda Johnson, husband) or her testified that while Appel- he was lant’s at cellmate the Baltimore Detention County Center Appellant October-November robbery discussed the home. Johnson’s Charles Johnson stated told him that a person he and named “Molek” went to Wanda Johnson’s and Appellant house went upstairs rob safe. Charles Johnson testified:
“During robbery someone came to the door. At that *12 point, yelled Ms. Johnson out ... daughter’s her name or something because, of that panicked nature. And Clarence I guess, said, would him they recognize is what he and as a result up shooting he wound Ms. Johnson.” Charles Johnson went on to state him Appellant that told first, that while both he and “Molek” were when upstairs After was ran Johnson they heard noise “Molek” downstairs. shot, until no one was ran but waited Appellant “Molek” left. outside before he Johnson, husband, Elwood testified
Wanda Johnson’s to their home. He also frequent was a visitor Appellant home, providing specific of the details layout described a a closet. The a that contained safe spare about bedroom cash, a safe, and had personal papers petty which contained a lock and lock and the closet was secured with combination day,, and that earlier in the the safe hasp. Mr. Johnson stated he after in normal condition but when returned closet were hasp been forced and the was shooting open closet had Furthermore, aon lying open his wife’s wallet was broken. bedroom, have been normally in their which would dresser or drawer. placed and a cabinet dresser purse inside her Wilson, her trial daughter, basically recapped the victim’s her describing relationship Appellant, her with testimony, past son, hearing her home with her cousin and arrival at mother’s screams, fleeing the and going her mother’s scene noise and street, of her finally being and informed help down the to efforts murder. Wilson also testified mother’s seeing composite her from sketch Bradshaw prevent reading her from develop keep her and helped cousin related the murder. Wilson stated viewing news parent’s knew safe in her bedroom spare about the Appellant normally was not home on that he was aware her mother knew that owned a .38 Friday evenings. Wilson kill type of used to her mother. weapon caliber pistol, Clinton, cousin with her at the Carla Wilson’s who was scene, going her trial as to repeated crime also downstairs, house, hearing someone noise seeing the Johnson house, finally her from inside the aunt’s screams a sketch police development composite assisting saw the house. person she during stipulation presented Also the State’s and the fact jury regarding cartridges recovered addition, handgun. from .38 caliber they were all fired *13 Gibson, sister, Victoria the victim’s testified as victim impact witness, describing her sister’s personality nature and and warm relationship family. she had with her entire Further- more, Appellant’s report, PSI which was redacted to defense, satisfaction of both the State into and was introduced evidence.
During defense’s Arthur Rogers testified that he during incarcerated with Charles Johnson October 1994 point at one “rifling my he discovered Johnson through charging documents.” Ventura McLee testified he was in incarcerated October 1994 with Appellant and Charles During period, Johnson. Charles Johnson showed McLee papers, indictment police reports, and photographs relating Appellant’s case. Timothy Wren testified while he was with incarcerated Charles during Johnson August and October 1994, Charles Johnson told him that he had seen charge papers, that he had Appellant heard talk about the in cаse his sleep, and that Appellant had confessed his guilt. Eric Spencer, who in cell resided next to Charles Johnson Appellant October testified that he never heard Appellant his discussing case with Charles Johnson. as
Testifying mitigation witnesses were Appellant’s parents, Sr., Conyers, Clarence Conyers, and Eleanor as well as Rever- end William Felder. right exercised his of allocu- tion, stating that “had no he involvement in this crime whatso- ever.”
Additional facts be provided will as necessary they relate respective issues follow.
II. ANALYSIS A. Preservation Issues for Appellate Review matter, As a threshold specifically before we address each review, the issues Appellant has asked us we must general discuss in terms the requirements for an preserving appeal. issue for Of the twelve issues Appellant raises for eight of them were not appeal, properly preserved for review particular why Appellant’s The reasons issues this Court. will be appeal discussed properly preserved
are not H., K., L, D., E., G., I., II., B., subsections part detail in infra. Mary review is delineated scope this Court’s (a) 8-131, “Ordinarily, stating part: with
land Rule *14 plainly it any not other issue unless court will decide appellate by in or by the record to have been raised decided appears 262, State, 253, v. 338 Md. See also Walker trial court....” 239, ordinarily will not (1995)(stating that “[w]e 658 A.2d 243 court”); to the trial that was not presented review an issue 107, Bell, 178, 187, A.2d 334 Md. 638 v. State 112 an ordinarily will not consider an court (1994)(declar-ingappellate “that v. raised”)(quoting Robeson previously that has not been issue (1979), State, 498, 501, 1221, 403 1223 cert. Md. A.2d 285 (1980)); denied, 1021, 680, 62 654 444 100 S.Ct. L.Ed.2d U.S. 1035, Hutchinson, 198, 202, 1037 Md. 411 A.2d v. 287 State will not “[ojrdinarily appellate courts (1980)(observing and which have not been raised claims of error address 571, court”); 2 Md.App. v. Gaylord in the trial decided 783, that “the court will not 575, (1967)(holding A.2d 786 235 not plainly which does any point question decide ordinarily to have been tried and decided appear by record 8-131(a) court”). Rule the remainder of Md. lower While to reviewing authority court with the decide provides below, power solely is within court’s not raised such issues Bell, 334 at 187- way mandatory. in no Md. discretion is Bell, 88, 638 at 113. we stated: A.2d 8-131(a) an of Rule plain language “It clear from the at trial not raised appellate arguments court’s review discretionary, mandatory. not The use of word level is ‘ordinarily’ clearly contemplates both those circumstances they if appellate court will not review issues were which an in which it raised and those circumstances previously will.”
Bell, 188, A.2d at 113. 334 Md. at Md. purpose that the main repeatedly
We have asserted 8-131(a) are sure that all in a case parties Rule is make treatment, fair orderly accorded and also to encourage Bell, administration at law. Md. 638 A.2d at end, 113. Toward that we stated Bell: “The interests of by ‘requiring] fairness are furthered counsel to bring the position of their client to the attention of the court lower the trial so that the trial court can pass upon, possibly ” correct errors in the proceedings.’ Id. (quoting Clay Co., 409, 416, man v. Prince George’s 292 A.2d (1972)). Another rule pertinent our discussion is Md. Rule 4- 323, which for making objections describes method proceedings. Maryland criminal Rule 4-323 applies both Director, trial sentencing proceedings. See Towers v. 678, 682, Md.App. (1973)(stating 464-65 “the rule is equally applicable stage as to the of the penalty 4-323(a), trial guilt stage”). Rule Maryland “Objec evidence,” tions “An objection states: to the admission of evidence shall be made at the the evidence is offered or time *15 grounds objection soon thereafter as for become appar Otherwise, ent. the objection is waived.” Md. Similarly, Rule 4-323(e), “Objections orders,” other rulings provides: to or
“For of purposes by review the trial court or on appeal of order, ruling other or it party, is sufficient that a at the the ruling time or is or sought, order made known makes to the court the action party that the desires the court to take or objection to action of the court.” Support for the principles expounded Md. Rule 4-323 can State, 423, 436, be found Leuschner v. 41 Md.App. 397 A.2d 622, 630 (1979)(holding that preserve “[i]t axiomatic that to an issue for objection appeal some must be or a party made will be deemed to an objection”); Gaylord, have waived 2 575, 235 Md.App. at 786 (declaring A.2d that “a defendant in a criminal prosecution cannot for raise the first time on appeal objection an which was available to him at the trial and below”); which he State, did v. raise Caviness 244 Md. 575, 578, 417, 224 A.2d 418 (1966)(observing that “unless a timely objections defendant makes the lower court makes 150 court, he be have to that will considered feelings
his
known
objections
now
on
can not
raise such
them and he
waived
702,
State,
269, 273, 55 A.2d
704
v.
189 Md.
Davis
appeal”);
(1947)(“[S]ome
made
...
the court
objection
be
[must]
a ruling
absence of such
upon
question.
rule
[must]
review.”).
of
Appeals
for the Court
nothing
there is
case,
we should
maintains that
In the instant
capital
earlier
because
preservation requirement
relax the
of our
appropriate.
such action is
While some
cases indicated
will
may
suggested
have
we
penalty
death
cases
previous
issues
properly preserve
strict about the failure
be less
2,
743,
(see
State,
569,
Md.
n.
530 A.2d
v.
310
580
review
Jones
1050,
(1987),
grounds,
486
108
n. 2
vacated
other
U.S.
748
(1988);
Evans,
2815,
Foster,
100 L.Ed.2d
S.Ct.
Huff
316,
1331,
State,
1326,
306,
503 A.2d
cert.
v.
305 Md.
ington
(1986);
3310,
denied,
1010, 106
While an issues, unpreserved ordinarily this discretion dress and decide preservation rules for issues will not be exercised. The unfairness and purpose requir have a salutary preventing court, raised in and trial ing' that all issues be decided *16 including in all capital and must be followed cases these rules cases where we have exercised our discretion cases. few unpreserved prejudicial issues are cases where error to review was a preserve the failure to the issue not was found and generally by either matter of trial tactics. We have done so an part holding, the issue as of our addressing deciding and holding, by way usually alternative or of dicta. We elect unpreserved review an issue after it has only thoroughly been (1) a argued, help briefed and where decision would error, (2) recurring correct a provide guidance when there (8) trial, or likely to be a new if offer assistance there is subsequent collateral attack the conviction. The fact that cases, we have dealt with in unpreserved capital issues some case, in will do so the instant from part stems our recognition that future collateral attacks highly likely are such cases. Our unpreserved decision review issues in this particular case be should not viewed as an indication that we will review unpreserved issues in future cases. essence, we emphasize that where counsel wishes to
object
evidence,
any
to the admission of
he or she must do so
timely
fashion or the
will
be preserved
issue
Court,
review. Counsel
not rely
should
on this
review-
court,
ing
thinking
do their
for them after the fact. Fur-
thermore,
we have
stated
even
a death penalty
outcome,
with the potential finality of
litigation
its
cannot
ad
through
continue
counsel “withholding issues or
infinitum
Foster,
framing
questions differently each time.”
B. Detective Marll’s Testimony About Charles Johnson The first issue that shall we address is whether of a deprived fair hearing because of Detective Philip Marll’s regarding prosecution witness Charles *17 I., in Charles Johnson testi- part supra, As stated Johnson. statements inculpatory fied for the State about During cross- the two were cellmates. to him while made Charles examination, attempted to undermine defense counsel to his by showing plan he had reduce credibility Johnson’s with pending charges by providing on State prison time theory, inmates’ cases. To support information on other through Appellant’s asked if he had rifled defense counsel prisoners, of other but he denied the case files papers and McLee testified as Rogers so. Arthur and Ventura doing witnesses, Johnson they that had seen Charles stating defense displaying files or to through their own case looking either Timothy Wren prisoners. them the documents of other case defense, Johnson stating for the Charles also testified papers.” Appellant’s “charge him had told he seen Marll, investigat- who was one of the State then called testified as a rebuttal witness. He ing officers 23, 1994, Charles he was informed that November unit with speak had contacted his and asked Johnson Subsequently, the Wanda Johnson murder. someone about center and partner Marll and his went to the detention police department,' back to the Johnson brought Charles answering After his written statement. they where obtained docu- familiarity charging his with the questions regarding ment, search report, support affidavit in police warrant, as follows: Marll testified do, Now, I going you what am to ask Attorney:]
“[State’s Detective, specifics, you have had the referring is without compare what information Johnson [Charles] opportunity information that to the gave you comparison support the search the affidavit charging papers warrant? Yes, sir, I was.
[Marll:] within the And is there information Attorney:] [State’s is above and gave you that Mr. information Johnson charging contained within the docu- beyond that which was you search warrant which were able ments and this verify? Yes, sir. significant There was a
[Marll:] number state- Johnson, by ments that were made Mr. some factual state- ments that were made Mr. Johnson that were included in application for statement charges and/or the affidavit the search myself and seizure warrants that my partner obtained. I These statements which knew *18 hearing them upon Mr. Johnson to be I truthful, and from verify was able to each and every gave statement that he added). us.” (Emphasis
The Appellant contends the emphasized portion of testimony Marll’s improper was and prejudicial because Marll offering opinion was his as to Charles Johnson’s credibility as contention, a witness. In support his Appellant relies on primarily Bohnert v. in which we stated: “In a criminal case jury, tried before a a fundamental principle is that the of a credibility weight witness to be accorded the testimony witness’ solely are within the province of the jury____ It ... is error the court to permit go statement, belief, a or opinion of person another to the effect that a telling witness is truth or lying. is witness,
It the settled law of this expert State that a otherwise, may not an give opinion on whether he believes a telling witness is the truth. Testimony from a witness relating to the credibility of another witness is to be reject- (Citations omitted). as ed matter law.” 266, 277-78, (1988). 662-63 matter, As a preliminary Appellant’s claim of error was not preserved for Apparently review. in the context of Marll’s testimony, entire defense counsel did not deem the statements so improper prejudicial require objection. an There fore, we are not rеquired to review this issue. See full II., A., discussion in part subsection supra. Even if the issue were properly preserved however, for appeal, Appellant’s reli ance Bohnert, Bohnert is misplaced. we found revers- essentially testimony worker’s where social
ible error victim alleged that an child abuse to an assertion amounted In the lying. was the truth and that defendant telling offering opinion an it clear that Marll was instant is Instead, as a witness. credibility as to Charles Johnson’s information Charles Johnson that certain stating Marll was contained to trial was not prior him with supplied had confirm that and, was able to because he papers Appellant’s and, therefore, information, truth- it as accurate regarded he First, to testimony was twofold: of Marll’s purpose ful. only have obtained Charles Johnson could demonstrate that and not from from himself information some cell; through” documents found “rifling information second, that some of Charles Johnson’s to show investigating the to the killer and those only was known murder, learned the infor- only could have and thus Johnson For the murder. person who committed mation from reasons, regarding the infor- rebuttal Marll’s these not invade the the State did provided Charles Johnson mation determining the charged with jury, of the which province *19 their to accord testimo- weight of witnesses and the credibility ny. stated,
Thus, we hold that was not Appellant for reasons testimony regarding hearing by Mark’s fair deprived Johnson, is not and reversal witness Charles prosecution warranted. Rogers Examination of Arthur Direct
C. erroneously trial court is whether The second issue witness Arthur examination of defense restricted direct sought to Rogers’ testimony, defense counsel During Rogers. introduced into following extrajudicial two statements have the (1) he should not warning Appellant that Rogers’ evidence: examining was talk to Charles Johnson because Johnson inmates, had seen Rogers of other court documents (2) his going through papers; own Charles Johnson to take Rogers, “you need Charles Johnson’s statement first,” engaging his for of number one as reason care conduct of searching other inmates’ cells for information about their cases. We begin emphasizing while the trial court sustain did the State’s objections as to the reasons Rogers’ warning to as well as to Appellant, Charles Johnson’s alleged “number Rogers, one” statement to trial judge did permit Rogers testify that he warned Appellant not to talk with Charles Johnson about his case. The pertinent testimo- ny is as follows:
“[Defense Mr. Rogers, Counsel:] the time that Mr. Conyers Johnson, into the with moved cell [Charles] did you Conyers advise Mr. talk not to with Mr. Johnson? Yes, I [Rogers:] did.”
First, the defense wanted that Rogers know warned to speak not with Charles Johnson about his case, because had Rogers rifling [Charles “found Johnson] through charging [his] documents.” The obvious inference defense counsel the jury wished to make was that a result of Rogers’ warning, Appellant did tell Charles Johnson about anything his case. The portions relevant Rogers’ this issue are as follows: you “[Defense Did Counsel:] have conversations with Conyers Mr. about Johnson? [Charles] [Rogers:] Yes. what,
[Defense And if you Counsel:] anything, did tell Mr. Conyers? Attorney:] Objection.
[State’s
[The Court:] Sustained. (Counsel then approached bench following and the occurred.) exchange I
[Defense assume the basis Counsel:] for the State’s objection is that it calls for hearsay response. position
defense’s proffer it—the would be that the *20 response would be that he Mr. Conyers, advised the defen- dant, not to talk to Clarence—to Charles Johnson because Johnson was through rifling people’s to papers look for get some case to in. involved And not to that prove that’s— to prove the truth of of the matter statement that Mr. fact, Johnson, to prove make but to
Rogers would anything to unlikely was have told Johnson prove Conyers of that That is the basis for offer based on that advice. evidence. me,-Your Attorney:] hearsay It still sounds like to
[State’s Honor. Well, if technically, hearsay be it is it wouldn’t
[The Court:] to response did in somebody what prove offered to received, you have have evidence as but don’t information information? response to what he did I think the can be inference drawn [Defense Counsel:] notice, says that he told Johnson put [Charles] if he are about whether challenging him all these details. We grava- in this that’s the Apparently that is case. ofmen the issue. question I ask the permit you leading will
[The Court:] not to talk ... as to his conclu- you ‘did advise him ’—but sions— added.) Okay.” (Emphasis
[Defense Counsel:] Second, wanted to establish that Charles John- the defense examining his motivation for documents son had described first,” a “taking care of number one other inmates’ cases with on the "witness stand and not lying motivation consistent justice. Rog- section truth-telling pertinent with is as ers’ on this matter follows: Did Johnson make state- “[Defense Counsel:] [Charles] what he to do with infor- you regarding ments intended Conyers’ case? mation about Mr. Attorney:] Objection.
[State’s [The Sustained. Court:]
(Counsel following the bench and the approached then occurred.) exchange Honor, Again, proffer Your would
[Defense Counsel:] prove [Charles] not to the contents the comment that be prove Mr. Mr. Rogers Johnson made to but Johnson’s looking through mind at the time and his motive in state *21 the people’s papers, proffer of of witness would be that this Mr. say witness would that Johnson said to him to the something ‘you that need effect ’ to take care one first, something number to the of effect that— you offering
[The Court:] Aren’t it to that prove [Charles] Johnson was of taking caring number one first? He [sic] prove was afraid to the truth what was contained statement? Well,
[Defense I think it to offering Counsel:] we are prove—it’s a I purpose, guess, dual is what I’m saying. it I offering prove, We’re and wouldn’t mind an instruc- jury
tion to the would they tell the that can’t use it to prove the truth of the it prove matter but to use mind, state I think is it critical to this defense. Well, if you [The question Court:] had asked the of the it, witness so he could have—if he admitted that would it, hаve been fine. If he you denied then would have opportunity to on ask it of an basis inconsistent state- ment, but he was to my knowledge never asked on cross- examination direct examination concerning any state- ments he made to this witness. think
[Defense I on Counsel:] the Court’s correct that. I objection.” [The Court:] will sustain (Emphasis add- ed.)
The proffer was that gave Charles Johnson an Rogers explanation of his motive for looking through papers of other inmates explanation and the was he taking “that care of number Assuming one any probative first.” there was by value statement fellow inmate that he was not first, altruistic was looking out for Rogers’ himself testi- mony about Charles Johnson’s statement would hearsay. be 5-801(c) Hearsay statement, defined Md. Rule as “a other than one made the declarant while testifying the trial or hearing, offered in evidence to prove the truth the matter State, 295, 304, v. A.2d See also Ali 314 Md.
asserted.”2 (1988). it is is admissible if An out-of-court statement or if it truth of the matter asserted being offered hearsay recognized exceptions falls within one of 5-802.1, 5-803, and 5-804. See footnote See rule. Md. Rules 621, 598 A.2d Richardson v. 2. See also admissibility (1991)(stating ruling “[i]n *22 of evidence, must the nature judge the trial examine hearsay statements, they as well as what are offered the out-of-court prove”). to be excluded that neither statement could
Appellant argues Re- following we for the reasons. hearsay, disagree but judge wrongly trial Appellant’s assertion that the garding Appellant from as to to Rogers testifying warning his excluded Johnson not talk to Charles Johnson because. that he should inmates, examining argues the records of other Appellant was Burgess v. non-hearsay is classic and cites that the statement State, 12, 830, 12 522, A.2d 838 n. 537 n. Md.App. (1991), not within the warnings the that do fall proposition for that as rule and are thus admissible. We reiterate hearsay did, shows, to, Rogers was clearly permitted the record to to Charles Johnson. testify warning as to not talk however, underly- to on the Rogers, permitted expand was not warning, judge with the trial ing gave reasons he to informa- exercising prevent his discretion this substantive jury. to the being presented tion from not that the trial court erred in Appellant also asserts alleged to to Charles Johnson’s state- allowing Rogers testify strictly Although Maryland apply Evidence not in 2. Rules of do underlying capital sentencing proceedings, still look to the eviden- we Whittlesey tiary guidance. we in v. State: principles for As stated sentencing proceed- expressly apply capital in Rules do "[T]he ings. Maryland 5-101 reads ... ‘[T]he The committee note Rule Appeals Chapter not intended to limit the Court of in Rules in are pro- defining application sentencing of of rules evidence specific provisions statutory ceedings capital cases or to override ” (Ci- admissibility proceedings.’ regarding of evidence in those omitted). tation 223, (1995). 243 n. 12 340 Md. n. A.2d ment to Mm that Johnson “needed take care of one number first,” because the statemеnt falls within the state mind of hearsay rule.3 con exception Specifically, Appellant tends that was an statement either offered show independently relevant state of mind therefore not and was asserted, for the truth it offered matter or was offered Lynn prove Charles Johnson’s state mind. See 6 Maryland 801.10, 282-83, § which McLain, Evidence offered, prove states: “Statements not to truth therein, matters asserted but as circumstantial evidence knowledge the declarant had of or certain believed facts or mind, belief, particular had a knowledge, state of when that (Citations relevant, of mind is state are omit nonhearsay.” ted). 542, 558, Baker See also v.
790-91 (1993)(holding hearsay falling within the state of mind exception capital admissible sentencing proceed ing).
The trial did judge concluding not err statement that Charles Johnson care of taking “was number one first” being offered for the *23 truth the matter hearsay. asserted and was thus As transcript excerpt the illustrates, supra observed, the trial court and defense counsel concurred, that had Johnson been cross-examined while on the statement, witness stand making and denied the the statement would have been as prior admissible a inconsistent statement so, however, Md. Rule per Having 5-613.4 not done there was exceptions: Hearsay 3. Rule Unavailability 5-803. of declarant not required. "(3) mental, emotional, existing physical Then or condition. A state- mind, emotion, ment existing of the then declarant’s state of sensa- tion, (such intent, motive, physical plan, design, or condition as health), feeling, pain, bodily prove mental and offered to the declar- action, existing ant’s then condition or the declarant's future but not including memory a prove statement of or belief to the fact remem- execution, revocation, bered or believed unless it to relates the identification, or terms will.” of declarant’s 4. Rule 5-613. Prior statements of witnesses. trial court correct- admissibility
no basis for its proper objection. sustained the State’s ly alleged state important, more Johnson’s Even Charles is proof engaged his self-interest he ment about “taking of care of number specific action for the any purpose hearsay of exception the state mind one first.” Under rule, existing then state “a statement the declarant’s asserted, truth the matter mind prove is admissible a fact prove it ... except generally is inadmissible happened which purportedly an action] [such before Lynn Maryland made.” statement was McLain, Evidence added). 803(3).l, (emphasis § the instant 356-57 because Charles leap the inferential we cannot make Rogers looking said that he “was out allegedly Johnson one,” actually through rifle other inmates’ that he did number documents, in documents, particular Appellant’s and in case a with order to cut deal the State. one excluding
Even if the court erred in either trial statements, beyond both error was harmless reason or is not error committed a trial court “Every by able doubt. and a trial. Reversible error will be found grounds for new if to have only likely trial warranted the error was new below____ merely is harm- If [the error] affected the verdict Lynn McLain, error, judgment will stand.” less [then] added). 103.22, § Maryland at 49 See (emphasis Evidence "(a) concerning prior party Examining A exam- witness statement. prior or made ining a about a written oral statement witness or its contents at that witness need not show it to time, witness disclose (1) provided that of the examination the state- before end ment, written, parties, if the if is disclosed the witness and oral, circumstances the contents the statement statement made, including persons to whom it was under which it made, (2) given the witness is an are disclosed to the witness *24 opportunity deny explain it. (b) prior evidence inconsistent statement witness. Extrinsic of justice require, evidence of the interests otherwise extrinsic Unless prior by a statement a witness is not admissible under inconsistent (a) (1) requirements Rule until the of section have been met this (2) having the failed to admit made the statement and witness has the concerns non-collateral matter.” unless statement
161 638, State, 647, 665, Dorsey also v. 276 350 A.2d 671 Md. case, (1976)(stating proposition). the same the instant II., B., in part we stated subsection some of the supra, provided information that the regarding Charles Johnson beyond Wanda Johnson went contained anything murder Indeed, papers Appellant the had his cell. some of Charles only Johnson’s information was investigating known those murder, person the and of the course who committed then, Obviously, crime. Charles Johnson’s information could Therefore, only been from Appellant have obtained himself. even if had to Appellant’s Charles Johnson access case docu ments judge disallowing jury trial erred in to hear effect, any defense witness such statements to error harmless because testimony would not have affected the Moreover, outcome of proceeding. ultimate the examina tion of witnesses at trial and control over witnesses’ State, are left to the judge. discretion the trial Oken v. 327 669, 258, 628, (1992), denied, Md. 612 A.2d 278 cert. 507 U.S. 931, (1993); 113 122 S.Ct. L.Ed.2d 700 Trimble v. 387, 401, (1984), Md. denied, cert. (1985). 1230, 105
U.S. S.Ct. L.Ed.2d sentencing During hearing, during and also the de- statements, closing fense’s jury was made well aware Appellant’s theory jailhouse Charles Johnson was a “snitch” who his Appellant fabricated conversations with re- garding the Wanda so he Johnson murder could reduce his own spent prison. time can safely We assume that the jury took this with into theory them room evidence, deliberations and it considered supporting all along with in the rendering other evidence before its verdict. Consequently, alleged we hold that any error did not affect the of the sentencing proceedings outcome and was beyond harmless trial judge reasonable doubt. The also acted properly sustaining objections the State’s extrajudicial statements enter wished to into evi- dence.
D. Direct Examination Ventura Eric Spencer McLee and erroneously re- issue is the trial court Thе third whether Ventura of defense witnesses stricted direct examination During Eric direct examination Spencer. McLee and McLee, to that Charles Johnson sought counsel elicit defense he to do with McLee what intended had told displayed Johnson allegedly which Charles papers, indictment McLee, speak was not to with Appellant that warned to examination, de- During direct Spencer’s Johnson. Charles to introduce additional testi- similarly attempted counsel fense talk was not to with Charles mony Appellant advised testimony, Rogers’ As with dis- about this case. Johnson C., II., by noting begin subsection we part supra, cussed as objections sustain the State’s judge the trial did while warning Appellant, testimony regarding to some McLee’s warning testify as to the fact of the itself. he was permitted follows: pertinent testimony The as have a conversation you Did ever “[Defense Counsel:] Conyers Johnson? you [Charles] Mr. about wherein warned Objection. Attorney:] [State’s specific him permit I will to answer the Court:] [The [answer], if I witness to the other question permitted will ask it. you Yes.”
[McLee:] as however, testify Spencer, properly permitted his made to because any warning statement be plainly hearsay, as to this matter was will testimony discussed infra. is as portion relevant McLee’s additional
follows: you Let ask this. there come me Did
“[Defense Counsel:] you cards? play an incident where—did Me, Johnson Co- Yes. and Clarence [McLee:] [Charles] nyers.
[Defense Did there ever come an Counsel:] incident where Mr.—you had a conversation with Johnson [Charles] about Mr. Conyers Conyers when Mr. was not there?
[McLee:] Yes.
[Defense Did Johnson display you Counsel:] [Charles] during documents conversation? Attorney:] Objection. [State’s
[The Overruled. Court:]
[McLee:] Yes. you
[Defense Can identify Counsel:] the documents that Johnson displayed you? [Charles] [McLee:] He had his indictment papers. papers?
[The Court:] Whose indictment Johnson [McLee:] [Charles] had Clarence Conyers’ indict- ment papers.
[Defense he anything Counsel:] Did have else? report pictures. [McLee:] Police and some [Defense Did he you Counsel:] indicate to what he planned to do with that information? Attorney:] Objection.
[State’s
[The Sustained. Court:]
[Defense Did Counsel:] there come a time when Mr. Co- was nyers advised Johnson had his papers? [Charles] Attorney:] Objection. [State’s
[The Court:] Sustained. you [Defense Do know if Conyers Counsel:] Mr. learned about this display? Attorney:] Objection.
[State’s
[The Court:] Sustained.
[Defense you Counsel:] Did at point time either before or after this incident advise Mr. Conyers about discussing his case with Johnson? [Charles] Attorney:] Objection. [State’s
[The Court:] Overruled.
[McLee:] Yes. what the substance of And was
[Defense Counsel:] advice?
[State’s-Attorney:] Objection. Sustained.” Court:]
[The testimony is follows: Spencer’s section of as pertinent you Conyers Mr. Did meet “[Defense Counsel:] detention center? Yes.
[Spencer:] are you Did there come a time that [Defense Counsel:] discussing about Conyers where Mr. was warned aware of his with Johnson? [Charles] case Attorney:] Objection. [State’s added.) (Emphasis Sustained.” [The Court:] C., II., his preceding argument, part As in subsection supra, Appellant maintains Spencer McLee and both permitted testify been to Charles Jоhnson’s should have documents, case as to use of well planned given about Charles specific warnings details Appellant’s argument his motives. The basis for Johnson and *27 falls within papers” is use of statement “planned hearsay to and the exception the state of mind rule matter, are As an initial “warning” nonhearsay. statements what excluded. Appellant never established was When objections, proffered court defense counsel never sustained Appel to the questions. Although what the answers would be obvious, that the to questions lant answers these were argues is to A to the proffer it not obvious us. substance to required of the answers in order importance expected was Bruce, See for 828 Md. at preserve appeal. the issue his (stating clearly A.2d must party proffer at 408 that “[a] challenge the trial court in order to on theory appeal to Mack v. objections to those sustaining questions”); 583, 603, that “the (1984)(holding is erroneous and question of whether the exclusion evidence prejudicial properly preserved constitutes error has a formal appellate proffer review unless there been testimony what the contents and relevance of the excluded been”). Thus, would have because this issue not pre- was appeal served for we are not to it. required review See also II., A., full in part supra. discussion subsection Assuming arguendo that the properly pre issue was appeal, judge’s served for the trial exclusion of this evidence was not erroneous and not deprive Appellant did of a fair hearing. Earlier in his testimony, permitted the trial court testify McLee to that he Appellant had warned not to discuss however, his case with Charles Johnson. As with Rogers, McLee was not permitted testify to as to the substance of this particulars warning. McLee also was not to allowed to testify as what Charles Johnson was to going do with information, case or as to whether Appellant ever discovered that Charles Johnson had his documents. The trial court did not err in refusing to allow the to hear McLee’s on these matters. to trying present these state ments to jury, defense counsel was attempting elicit actions, evidence as to Charles Johnson’s words and not to his mind, state of which clearly was being prove offered asserted; truth of is, the matter Charles Johnson was looking out for trying himself and to arrange a deal with the State, which him gave a motive to fabricate information re garding Appellant’s case. For a discussion the hearsay rule and the II., state of mind exception, part see subsection C., supra.
As Spencer’s testimony, defense counsel seeking demonstrate that Spencer knew someone else had warned Appellant about Charles McLee, Johnson. Unlike Rogers and permitted who were testify that they had warned Johnson, themselves not to talk to Charles Spencer no had knowledge firsthand of Charles Johnson’s alleged motives that resulted in his having a direct conversation with Appellant which he warned him not to share information with Charles *28 Thus, firsthand, Johnson. Spencer had no personal informa- convey tion to to His jury. testimony that he knew someone else had warned Appellant not to speak with Charles Johnson about his case is plainly hearsay, for the same hearsay, McLee’s as dis-
reasons found be we supra. cussed in excluding if the trial court erred these two
Even statements, hold error we that defense witnesses’ their testimony harmless a reasonable doubt because beyond proceed not affected ultimate outcome of the would have II., in part as we stated ing. the instant subsection B., that Johnson some of the information Charles supra, beyond the Wanda Johnson murder went provided regarding in his Appellant in the had cell. anything papers contained Indeed, known Charles Johnson’s information was some of' murder, investigating by and of course only those then, who the crime. Charles Obviously, committed person from only have been- obtained Johnson’s information could jury As with could Appellant Rogers’ testimony, himself. on help point trying but be clear defense counsel was jailhouse “snitch” who convey: that Charles Johnson was about was not be trusted was warned not tell him his involvement anything him and thus did about II., C., See subsection part in the Wanda Johnson murder. supra. Mercy or Sympathy
E. Circumstance of Mitigating erroneously The fourth is whether the trial court issue sympa- that a jury mitigating instructed the circumstance During Appel- or must be on evidence. thy mercy based hearing, court resentencing jury lant’s the trial instructed non-statutory “Any causing factors: factor mitigating as may to feel or toward the be you sympathy mercy defendant long as a so by you mitigating considered circumstance by Appellant argues factor raised such evidence.” was an incorrect of law because instruction statement informed could not consider circum- jurors they it mercy rise to a unless giving feeling sympathy stances actual such circumstances were raised evidence. claim of error trial regarding pre- circumstances was not mitigating court’s instruction *29 167 At point during proceeding served for review. no did object mitigating counsel to the instruction on circum defense sheet, to the on the verdict which wording stances or includes throughout.5 “based the evidence” See Md. phrase upon 4-325(e) 8-131(a). II., A., also part Rule See subsection supra. Regardless, jury when the instructions are considered whole, claim no jury as a has merit. The that it all may sentencing instructed consider evidence and background factors relevant to the defendant’s character and crime, and the circumstances of his fact that despite the Although Appellant 5. challenge required by does not the form Md. Rule 4-343(g), capital sentencing findings in which the and determinations made, must be we mitigating note this form also indicates that example, circumstances must be based on the “evidence.” For Sectiоn evidence, begins upon IV following "Based we make the determina- addition, mitigating tions as to mitigating circumstances.” In all by "preponderance circumstances must be found of the evidence.” judge In the instant the trial made it clear that "evidence” means just more physical Perhaps than and the exhibits. phrase Rules Committee should consider whether a broader such as might appropriate “facts or circumstances” be more in certain sections capital sentencing of the form than the term “evidence.” Supreme recognized The United States mitigating Court has also “evidence,” broadly interpreting factors must be based on albeit Oklahoma, 104, 869, Eddings term. v. 455 U.S. 102 S.Ct. 71 L.Ed.2d (1982), Eddings’ 1 upbringing Court held that abusive and emotion- al mitigating disturbance could be considered as a circumstance in a capital sentencing proceeding. The Court stated: “Just as the State may preclude any statute considering mitigat- sentencer from factor, consider, ing law, may neither the sentencer refuse to as a matter of 113-14, mitigating relevant evidence." 455 at U.S. 102 S.Ct. 876-77, added). 71 (emphasis original L.Ed.2d at 10-11 See Ohio, 586, 604, 2954, 2964-65, also Lockett v. 438 U.S. 98 S.Ct. 57 973, (1978), L.Ed.2d 990 in which the Court held: Eighth require “[W]e conclude that the and Fourteenth Amendments precluded considering, the sentencer ... not be from as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of proffers the offense that the defendant (Footnote for a omitted)(emphasis basis sentence less than death.” original). Finally, highly unlikely juror we note that it is that a would read a narrow definition into the specifically term "evidence” unless instruct- ed contrary, jury given to do so. On the if a a broad instruction as to consider, what likely jury it should it is more that the would conclude they that "evidence” consisted of all that during had seen and heard cir statutory aggravating beyond the may extend evidence non-statutory mitigating statutory and and the cumstances 405; Bruce, 619-21, A.2d at Md. at circumstances. See 188, cert. 142, 195-96, A.2d Booth v. (1992). denied, 121 L.Ed.2d 113 S.Ct. 506 U.S. sentencing statutory in the Indeed, provision the “catchall” body shall sentencing that the § 413(g)(8) provides scheme of specifi or the court facts which the “[a]ny other consider *30 circum mitigating it finds as writing in cally sets forth leeway in great has jury While the in the case.” stances factors in sentencing evidence and considering all relevant verdict, to focus and direct appropriate it is rendering its evidence, in particularly of mitigating jury’s consideration a more to achieve “in an effort sentencing cases capital penalty.” of the death administration equitable rational and 2331, 2320, 164, 181, 108 S.Ct. Lynaugh, Franklin v. 487 U.S. (1988). in Court also held 155, Supreme 170 101 L.Ed.2d Franklin that: must sentencing jury that a power the awesome
“Given a State to may it be advisable case, capital in a exercise for discharging these with some provide jury framework for a specific never held that And we have responsibilities. in factors aggravating and balancing mitigating method constitutionally required.” is sentencing proceeding capital added). (Emphasis 2330, 101 at 169. 179, 108 at L.Ed.2d S.Ct.
487 U.S.
explain
judges,
admonish
strongly
It
and we
important,
is
“ ‘anything
factor
mitigating
§
jury
413(g)(8)
that a
to the
it to
crime which causes
relating to the defendant
the.
”
to make clear
not be
may
appropriate’
that death
believe
factors,
“evidence” as
that,
the word
considering mitigating
than
meaning
far
form has a
broader
sentencing
in the
used
State,
51,
33,
Mills v.
310 Md.
testimony and exhibits.
just
grounds,
vacated on other
(1987),
486 U.S.
3,
11-12
527 A.2d
v.
Foster
1860,
367,
(1988)(quoting
“It is function to duty your determine what the are, facts to determine the facts from the evidence that was *31 trial, presented here at the the facts as have apply you to the I in you, way, found them law as instruct your determine sentence.
You must consider fairly impartial- and decide this case ly. perform You are to without or duty prejudice bias as to You party. swayed by should not be sympathy, prejudice public opinion.
[*] [*] [*] decision, In making your you must consider the evidence is, stand, this case. That from the witness physical evidence or exhibits that were into admitted evidence, stipulations and the defendant’s allocution.” as to the trial court went on to instruct
The sheet, reviewing it section the verdict specifics completing III, mitigat- which deals with by Regarding section. Section circumstances, trial stated as follows: judge ing III, yourself must determine for you “In Section each in this case. any mitigating circumstance exists whether mitigat- a sentencing proceeding, of this purpose For the the defendant or about anything circumstance is about ing in mercy may case that in fairness or make the facts of this for this defen- inappropriate penalty sentence an the death dant.
* * * forms, findings recorded As can see on the you your recording III not be unanimous. Before Section need however, a every must issue for findings, you deliberate reasonable of time. period yourself, case for but do so you
Each of must decide the consideration of the evidence with only impartial after an your jurors. fellow
(cid:127) circumstance ex- determining any mitigating whether ists, presented regardless all the evidence who consider it. introduced
A сircumstance must be but need mitigating proven, a doubt. A circum- beyond mitigating be reasonable proven need, a of the only proven by preponderance stance be by To of the evidence prove preponderance evidence. likely so than not so. something means to more prove form, whether you determining As will note of the preponderance circumstances exist mitigating evidence, you mitigating must consider the circumstances form.” that are referred on the trial court then outlined each of these circumstances *32 circumstance, As to the last the court stated: jury. 8, you any mitigating here would list additional “Under you find to exist from the evidence. circumstance which con- Any mitigating such circumstances listed here would non-statutory mitigating stitute what is called a factor. such miti- Your determination as to the existence gating finding factor must include the that the circumstance is, fact, exists this case and that the circumstance mitigating. factors,
In considering non-statutory mitigating you may relating background consider evidence to the evidence relevant and up well as material conduct the defendant including sentencing proceeding.” The trial then discussed judge unanimity regard- issue circumstances, ing mitigating by stating: concluded “Any causing you sympathy mercy factor feel toward the be may by you considered as a defendant mitigating long circumstance so as such is raised factor the evidence.
Mercy in and of itself bemay mitigating considered as a circumstance. every
Record in 8A such all mitigating circumstance that of you proven. find has been in 8B every mitigating Record circumstance that at you least one but not all of find has added). been proven.” (Emphasis
Despite object defense counsel’s failure to to the jury instructions or wording, the verdict sheet which as we have already stated not properly preserve does the issue for appeal, Appellant asserts that we should exercise our discretion to apply plain unpreserved error doctrine to his claim. general, will we not invoke this discretion except situations that are “compelling, extraordinary, exceptional or fundamen Hutchinson, tal to assure the defendant a fair trial.” 287 Md. 203, Moreover, A.2d at 1038. in the context of erroneous instructions, jury plain error doctrine has been used sparingly. “Maryland cases abound with instances where the plain error doctrine was advanced for a failure to instruct State, where this Court subsequently denied review.” Hall v. (1982).6 691 n. A.2d n. 3 cases, following Maryland appellate 6. In the apply courts declined to plain instructions: Walker v. error doctrine to erroneous *33 172 focusing on a however, do, note that
We
602,
State,
629,
(1996); Ayers
Md.
645
v.
335
429
Md.
684 A.2d
343
206,
(1994);
A.2d 521
Daughton,
Md.
582
v.
321
22
State
A.2d
application
plain
error
Special Appeals’
(1990)(reversing Court of
State,
instructions);
292 Md.
Hall v.
jury
the trial court's
doctrine to
683,
State,
695,
(1982);
A.2d 830
287 Md.
415
Tichnell v.
Md.
cert.
497 U.S.
*34
3296,
(1990);
S.Ct.
L.Ed.2d 805
Poole v.
167,
(1983).
Md.
1228.
In this
a
reading of the
entirety
instructions
their
demonstrates that
the trial court did
plain
not commit
error material
to the
rights of the
in providing guidance
accused
to the jury regard
Bruce,
ing
non-statutory
the
mitigating factors. See also
Md. at
F. Grossman Testimony and Instruction The fifth issue is whether the trial court erroneously re- fused to proffered testimony admit the of Professor Steven Grossman and erroneously refused to propound requested jury instruction regarding his testimony. Prior to the new in limine motion
sentencing seeking filed a hearing, testimony, proffering the admission of Grossman’s he testify the task philosophy underlying would as to selected, sentencing jury criminal defendants. Before limine, including motions trial court considered several motion, concerning Regarding motion Grossman. defense counsel stated: Honor, virtually I on what has
“Your am inclined to submit I scope The of the that would been written. is would be that Mr. Grossman a Professor law profess of criminal routinely who teaches and lectures the area sentencing, appearances Con- including before the Judicial Court Court ference the State District and Circuit any opin- That he would not be called to judges. express penalty the death in this imposing ions about whether case be or not or sen- appropriate appropriate would what be, give ... information merely tence would but some jury parameters goals the traditional about sentencing position in criminal It’s our that the cases. likely upon to have never been asked called do like this before.” anything motion, trial ruling: court denied *35 any I proffered way
“The evidence as understand it is not crime-specific. It’s ... It not defendant-specific. go does It togo to factors. does not factors. aggravating mitigating any I do not believe it is relevant to the issues decide, jury to I don’t it and believe would assist the way they which to decide in any deciding issues have court will order that the testimo- proffered so the ny be admitted.” during
Later defense counsel renewed the hearing later, again and request, it was denied. Still when the trial instructing jury, excepted defense counsel judge give court’s not to a instruction as requested decision testimony.7 Grossman’s taking
7. Defense counsel did not articulate the instruction at the time of however, exception; reads as “The instruction follows: Court First, erred in Appellant argues the trial court exclud- believed, because, if it may have ing Grossman’s a reason a sentence jurors impose one or more less given a this Court death. relies on case from for the than of mitigation that he was evidence related to premise deprived an effects of a life sentence as alternative to a practical 384, 411, Doering sentence. v. death See (1988)(holding now A.2d “we conclude that a jury seeking appropriateness determine of a life sen- will correctly tence be aided information describing the sentence”). practical and of such legal effects however, on Doering misplaced, reliance is because John Peterson, Case Management Manager of the Eastern Correc- Institution, Cushwa, tional and Patricia the Chair of the Commission, Maryland during Parole the sentencing testified hearing as to specifics a life sentence and about the daily existence of an inmate for life. incarcerated II., E., in part
As we supra, stated subsection sentencing body in a case capital may any consider relevant Bruce, mitigating See evidence circumstances. 413(c)(1) 620-21, at Md. at 616 A.2d 405. Section defines what is at capital sentencing hearing, admissible include evi related to aggravating circumstances, dence mitigating convictions, prior Furthermore, criminal and a PSI. 413(c)(l)(v) § “[a]ny states that other that the evidence court sentence, of probative deems value and provided relevant to a fair defendant is accorded to rebut opportunity added). (Emphasis statements” admissible. As we main I, in Conyers “any tained evidence a court trial wishes to ... must admit be relevant to sentence and reliable under (v).” subsection 345 Md. at (emphasis added). you goals instructs and appropriate sentencing the traditional *36 (that is, punishment); public criminal defendants are: retribution safe- deterrence!;]
ty; primary and you rehabilitation. These are the ideas you impose.” consider should as decide what sentence to 176 then, any proffered is that importance,
Of critical Rule 5-401 defines Maryland must relevant. evidence be having any tendency to make evidence as “evidence relevant consequence fact that to the determi existence of is than probable more or less it probable nation of the action 2. The trial be the evidence.” See footnote would without not, and is relevant or its court determines whether evidence has unless there been ruling may appeal not be disturbed on State, 626, v. 324 Md. 636- an abuse of that discretion. White (1991). Ebb 37, 187, also v. 341 Md. See 974, judges (1996)(declaring “[t]rial A.2d determining evidence is considerable discretion what have material”). is Finally, and which either “[e]videnee relevant irrelevant, issue, or to immaterial is inadmissi is relevant an Lynn Maryland 401.1, § at 261 McLain, ble.” Evidence omitted). (footnote testimony of Gross- proffered
In the instant background to character and man was irrelevant Thus, it particu of the was of no or the circumstances crime. testimony that Grossman’s jury. maintaining lar aid to admitted, Appel should have been was relevant and therefore out, however, Doering, point We again supra. lant relies compe Doering our referred “relevant and holding information, related anything which to the defendant tent” at A.2d 1295. Clearly, crime. nature, testimony general have been Grossman’s would sentencing as to relating concepts theories defendants, specific offering criminal rather than information his crime.
Second, that the trial court erred in Appellant asserts instruction, granting proposed jury which would have it into context put Grossman’s explained However, testimony of Grossman was jury. because the excluded, obviously explained supra, thеre was no properly If corresponding jury for a instruction. defense counsel need inappropriate ideas about the convey philosophical wished certainly he do capital jury, of a sentence could so ness
177 during closing arguments, but do not concepts properly such belong in instructions. jury
Therefore, we hold that the trial court was in error not when it to admit proffered testimony refused of Grossman not propound requested when it did instruction jury testimony. on his The trial court committed no abuse of discretion, its will be ruling by reversed this Court. Impact Victim Testimony
G. Witness The sixth is whether was of a fair Appellant deprived issue hearing impact purport- when victim witness Victoria Gibson edly conveyed jury previously to the had been Appellant sentenced to for the Dur- death murder Wanda Johnson. ing sentencing hearing, Gibson called the State as discussing victim witness. In impact impact Wanda upon Johnson’s murder her Gibson stated: “It was two family, trial, years before we went to we were heal from trying it, And, now, and it came back. another years, it’s two and we again My murdered, are back here here now. sister was just and it is unfair to the family.” Appellant argues that this comment, conjunction with information jury date viewed sheet, on the report possibil- PSI cover created the substantial ity that the would realize that had previously been sentenced death and that the sentence had been overturned, necessitating a proceeding. new claim of
Appellant’s
preserved
error was not
review since
no objection
defense counsel made
when Gibson
II.,
testified
no
requested.
part
and since
relief was
See
B.,
State,
supra.
subsections A. and
also
See
Ball v.
347 Md.
156,
(1997).
198,
1170,
699 A.2d
1190
Had
claim
properly
been
we
find
preserved,
would
it without
This
merit.
Court has recognized
impact
that victim
a proper
evidence is
State,
a sentencing body.
consideration for
See
v.
Williams
724, 762-65,
1106,
342
(1996);
Md.
679 A.2d
1125-27
Grandi
State,
175,
398,
(1995),
son v.
232-34,
341 Md.
670 A.2d
425-26
denied,
1027,
581,
cert.
519 U.S.
117 S.Ct.
178
addition,
(1994).
(1957,
Repl.VoL),
129-31
Md.Code
41, 4-609(d),
be
impact
§
that victim
statement
provides
Art.
Williams,
Although
in the
Md.
report.8
included
PSI
admissibility
A.2d at
we limited the
written
PSI,
in the
“the
those contained
impact
victim
statements
judge
in the
of the
may,
victim and other
discretion
persons,
trial, testify
sentencing stage
open
of the
presiding at the
the victim and
impact
the offense had on
concerning
court
691, 749,
Md.
family.”
of his
Lodowski v.
members
(1985),
grounds,
vacated on other
1257-58
*38
(1986).
1078,
1452,
oppor
“In or disposition the case, [sjhall, if juvenile practicable, permit court ... the the under oath or affirmation representative victim or victim’s imposition the of sentence or judge to address the before request Attorney ... of the State’s disposition [a]t other the ... the victim has filed a notification request ... or [i]f § ... ... [m]ay permit under 770 of article and form representative or oath or affirma- the victim victim’s under judge the of sentence impositiоn tion to address the before the disposition request or at of the victim or other the representative.” victim’s testimony claim that Gibson’s informed to previously
the
that
had been
sentenced
death and
jury
he
The
had been overturned is inaccurate.
that the sentence
sentences; presentence reports
§
Supervision
suspended
8.
4-609.
of
investigations
probationary
and
services.
and other
"(d)
involving
penalty
imprisonment.-—In
or
Same—Cases
death
life
imprisonment
penalty
the death
for life without
case which
27,
412,
§
a
possibility
parole
requested
under Article
the
including
impact
investigation,
a
presentence
victim
statement as.
27,
Code,
by
§
completed
provided
Article
781 of the
shall be
under
Probation,
by
and
be considered
the
the Division of Parole
shall
jury
separate sentencing proceeding is
court or
before whom the
27,
added).
(Emphasis
§
§ 412 or
conducted under Article
413.”
made
that
had
tried
jury
previously
was
aware
been
murder,
prior
and convicted
and this
trial was what Gib-
indicates,
son’s
to.
appeared
remarks
refer
As the record
thoroughly
instructed
jury
carefully
judge
on what it was to consider in
imposing
Appel-
sentence
Ball,
197,
lant. See
Therefore, reasons, for these hold if we that even the issue had properly appeal, been for preserved Appellant’s claim of error is without merit.
H. Testimony Domestic Violence The seventh issue whether the trial erroneously court evidence, admitted “other consisting crimes” of Monica Wil- violence. engaged in domestic testimony Appellant son’s and sentencing hearing, testified that she During the Wilson they in involved and romantically had become Appellant 1994. February through October from together lived Wilson, relationship. up-and-down had “an they According We fought it was bad— good, it was sometimes Sometimes murdered, lot, before her mother was week physical.” Appellant she shared with moved out the home Wilson violent, real a lot. He became real fighting “we were because week, mean, same Wilson returned During I him.” so left and she Appellant on the house. When to their home check arrived, in her Bradshaw son’s bedroom. she found Lawrence upon asking Appellant about Bradshaw’s testified that Wilson his I and it was house gone “he me that was told presence, he next in there that he wants. And said anybody and he let going I he was to shoot me. And time came there that he get a chain so I couldn’t back there.” going buy together, Appellant they testified that when lived Wilson also it on handgun “pulled and that she had out had .38 caliber it out me.” pulled him he testimony evi that Wilson’s constitutes Appellant argues such evi by Appellant, violence dence of domestic the sentenc any legitimate no relevance to issue at dence has 5-404,9 Rule Citing Md. asserts ing hearing. his only demonstrate crimi testimony was offered to Wilson’s thus, character; trial court erred admit nal or violent it. ting object to of Wilson’s
Defense counsel did not so relating Appellant’s temperament, violent conduct; prove Rule 5-404. Character evidence not admissible 9. exceptions; other crimes. crimes, crimes, “(b) wrongs, or acts. Evidence of other Other person prove of a wrongs, or is not admissible to the character acts however, may, conformity therewith. It be order to show action in motive, proof opportunity, purposes, such as admissible other *40 intent, plan, knowledge, identity, or preparation, scheme or common or accident.” absence mistake was preserved claim of error for review. See II., A., in full part supra. Appellant discussion subsection maintains, however, that this testi- because domestic violence first mony sentencing proceeding was admitted and was an through appeal sentencing, issue even the trial objection court was on notice that Appellant continuing had to it during sentencing hearing, negated the second which requirement that Appellant formally object. Appellant’s argu- 4-323(a), ment is in total to Rule which contradiction Md. requires object order to Appellant preserve issue object review. Appellant’s failure at the time the evidence effectively precluded apply- admitted the trial court from ing the evidentiary protections set forth in the capital sentenc- 5-404(b) statute, 5-403, i.e., ing Md. Rule and Md. Rule whether prejudice admitting outweighs the evidence its probative value. See 2. footnote Our case law interpreting 5-404(b) Md. Rule holds clearly weighing component that the of the test for admitting other crimes “implicates evidence exercise of the trial court’s discretion.” Terry v. 329, 335, 424,
Md. 631 A.2d 427 (1993)(quoting State v. Faulk- ner, (1989)). an Without оbjection record, trial court’s response we cannot say discretion, whether court the trial abused its we only will if reverse the error prejudice caused substantial Appellant. if
Even defense objected counsel had during sentencing the second proceeding, we would adhere our I, findings Conyers where we addressed Appellant’s objection
similar as follows: “Although Appellant objectionable found nothing about made, these they statements the time were he now contends that the in question statements were ‘other crimes’ evidence procedural admitted without the appropriate analy- sis required by statements, Faulkner.... one Ms. Wilson testified her relationship with Appellant had become violent that if she returned to home shared, she and one of them would harm do to the other....
182 unlikely Ms. Wilson’s statements highly think it that
We
new trial or
degree
to such a
that a
the
prejudiced
warranted,
point
be
but we also
hearing would
sentencing
our review.
preserve
did not
the issue
Appellant
out that
for
4-323(a) states,
the
objection
in
‘An
Maryland
part:
Rule
at
evi-
shall
made
the time the
of evidence
be
admission
for
grounds
soon
as the
is offered
thereafter
dence
Otherwise,
objection is
the
become
objection
apparent.
he
objection
no such
until
waived.’ Appellant made
drafted
added).
(Emphasis
to this Court.”
his brief
Rule
quoted
at
at 798-99. We then
Md.
345 Md.
(a)
“Thus,
that
there exists a presumption
and stated:
8-131
that has not been pre-
will not review
issue
this Court
I,
345 Md.
objection
Conyers
via
at trial.”
served
at 799.
also declined to exercise our discretion
A.2d
We
doctrine, holding that
extenuat-
plain
“[s]uch
the
error
apply
and, indeed,
we
are not
in this
present
circumstances
ing
Id.
if
issue
presented.”
find no error
the
were
would
that,
say
Appellant
we cannot
had
proceeding
In the instant
of
for
preserved
appeal, Appellant
his claim error
properly
showing
improperly
have
in
the evidence was
would
succeeded
413(e)(v),
of
governing
admissibility
the
Section
admitted.
trial
sentencing
provides
in
capital
proceeding,
evidence
a
...
“any
evidence that the
authority
with the
admit
court
sentence,
of
value and relevant
probative
court deems
a fair
to rebut
provided
opportunity
the defendant
accorded
Brad-
Since Wanda
and Lawrence
any statements.”
Johnson
a
caliber handgun,
were both shot with
.38
Wilson’s
shaw
Appellant
had
sentencing proceeding
it out
they
pulled
had
on each
handgun
.38 caliber
establish that
was
helped
prosecution
other
murder,
first
principal
degree
to Wanda Johnson’s
penalty
was
under the death
required
prove
which
State
413(e)(1). Moreover, capital
§
other
sentenc-
statute. See
upheld
we
of “other
proceedings
have
admission
ing
after
concluding
appropri-
crimes” evidence
evidence
considering
apply
penalty.
in whether to
the death
ate
See,
387, 431-32,
A.2d
Hunt v.
e.g.,
(1990)(holding that evidence
defendant’s institutional mis-
admitted); Collins,
294-95,
properly
conduct was
318 Md. at
Hunt,
(similar
holding).
upheld
at 13-14
we
A.2d
proceeding,
admission
bad act evidence
the sentencing
possession weapons
defendant’s
from
including
and letters
escape
describing
plans
defendant
were never culmi-
nated.
of other
explained why
We
evidence
crimes is treated
in a
differently
capital sentencing
than in the
proceeding
guilt/innoeence phase of trial. “[The
stood before
Defendant]
murderer,
as a
court
convicted
not as an accused defen-
dant entitled to
presumption
innocence. While irrele-
*42
trial,
vant
to the
a
guilt/innocence phase of
criminal
[the
‘dangerousness,’
past
defendant’s]
as
his
exemplified by
con-
duct,
phase
was relevant
sentencing
of
trial.”
Hunt,
Finally, initially, may note least the trial court have testimony considered to Appellant. favorable Wilson only stated that a week couple before the murder the had been fighting and that Wilson moved out of the home she Appellant. shared with break-up The hostile of the relation- ship could have been initially supporting viewed as a mitigat- ing involving circumstance Appellant’s emotionally disturbed the murder. See state of mind at time of 413(g)(4)(de- § as a lineating mitigating circumstance the emotional distur- alia). substantial, bance of inter sufficiently defendant if reasons, For similar we if say cannot that Appellant objection had preserved his and the evidence had been im- admitted, substantially harmed Wilson’s he was so properly testimony concern- to reversal. Wilson’s require a minor relationship constituted nature of their ing the violent far portions which other were testimony, full her part likely significance and more to be incriminating more testified, at example, arriving for jury. Wilson sentencing before she house, her mother’s screams hearing mother’s her her mother’s death. informed of being and to help, fled Conyers /, “it highly supra. I, [is] As we noted See part the' jury prejudiced Ms. statements unlikely that Wilson’s be sentencing hearing would that a new trial degree such at For all these 799. warranted.” reasons, erroneously admit the trial court hold that did we testi- consisting of violence domestic “other crimes” evidence of error. Thus, seventh reject Appellant’s point we mony. Bradshaw Murder of Lawrence Regarding I. Motion erroneously trial court issue is whether eighth Appellant preclude motion to evidence denied murder of Lawrence Bradshaw. of the had been convicted that, proper while it was maintains Specifically, Appellant in the murder conviction PSI prior include the fact consideration, prejudicial it was submitted for' argues name. to include the victim’s error *43 jury prejudi- to draw this information allowed the inclusion of of had convicted Appellant from the fact been cial inferences murder. Bradshaw’s filed a mo sentencing hearing, Appellant
Before the
of
in limine
regarding
the murder
exclude evidence
tion
con
Bradshaw,
the
had been
along
with
fact
sides,
from
the
After
both
hearing
victed of this murder.
fact
admissible but
that “the
of the murder was
court ruled
further
it.” The trial court
concerning
the
not
evidence
to make
appropriate
Court believes that
is
[it]
stated: “The
guilty of the
jury
that the defendant has been found
the
aware
Bradshaw,
the
of Lawrence
Court
degree
first
murder
Thus,
the motion in limine
with
to that.”
deny
respect
will
jury
to the
for consideration
the PSI that was submitted
name, in
contained Bradshaw’s
the context that he
awas
matter,
As an
homicide victim.
initial
claim of
error
not preserved
was
for review. At no
during
time
hearing
did the State call
to offer
witness
evidence as
Therefore,
of
the murder
Bradshaw.
there
nowas
for
object
the defense to
to. Near
of the proceed-
the close
however,
ings,
trial court provided
counsel with redacted
copies
report.
of
PSI
When
the court to
asked
review
PSI,
counsel
“[sjatisfactory
defense
maintained that it was
defense,”
whereupon
objection.
it was admitted without
Thus,
of
Appellant’s claim error as to
PSI
not properly
State,
before this Court. Watson v.
we stated:
“In Prout v.
348,
(1988),
instant did object defense fail to counsel when consideration, PSI offered into evidence for but he went so far to inform the trial court that the PSI was satisfactory.
If this issue
properly
us,
were
before
we would find Appel-
413(c)(1)
lant’s
claim error is without merit. Section
pro-
vides for the admissibility of
in a capital sentencing
evidence
(iv)
proceeding, with
allowing
subsection
for the ixitroduction
presentence
of “[a]ny
A
investigation report.”
sentence rec-
inflammatory
ommendation and
details
unrelated crimes
are to be
from
excluded
a PSI. Appellant asserts that the
inclusion
Bradshaw’s
name
the PSI as the victim aof
prior murder conviction was an inflammatory detail of an
*44
prejudiced
crime that
Appellant
unrelated
as to
jury’s
final
jury’s
that the
knowl
Appellant argues
Specifically,
sentence.
Johnson brеak-
he killed a
the Wanda
edge
participant
in
position
Appellant
the State’s
unfairly
bolstered
crime,
in the first
likely
principal
as
heavily involved
of
identity
of his contention that
degree.10
support
In
“inflammatory detail”
qualified
in the
as an
Bradshaw
PSI
for
him to
jury to sentence
death
that would lead the
already
had
been convict
murder because he
Wanda Johnson
I,
murder,
Conyers where
for
cites
ed
the Bradshaw
413(c)(l)(iii)
Scott,
§
interpreted
“In
this Court
we stated:
case, ‘inflammatory
evi
detailed
penalty
a death
preclude,
surrounding
and circumstances
underlying
of the
facts
dence
”11
(quot
187 murder, also evidence that the defendant had committed two 413(c)(1). § crimes was admissible Essential- unrelated under held of ly, unadjudicated we that the admission two murder Scott, charges constitutes reversible error. Md. at 297 However, case, 465 at 1136. A.2d the instant had already been convicted of the Bradshaw murder at the time of Scott, sentencing proceeding. the second See 297 Md. at whole, 465 at (holding A.2d 1133-34 as a “[w]hen read 413(c)(1) § precluding must as be construed the admission of relating evidence to other crimes for which there has been contendere”). a plea conviction or a of or nolo In guilty addition, unlike the Scott the Bradshaw conviction was not introduced other crimes evidence nor did the State surrounding refer to facts the Bradshaw murder en- couraging the the impose penalty Appellant. death jurors’ knowledge The of the Bradshaw only murder extended knowledge conviction, of a awareness related and not to a completely pending unrelated charge.
Thus, stated, for the reasons we that Appellant’s hold claim еrror, of even if preserved, is without merit and reversal is not warranted.
J. Crime Scene and Victim Photographs ninth issue is whether the trial court erroneously admitted of photographs Wanda Johnson and the crime scene.
Appellant argues that the photographs were irrelevant and prejudice that the from resulting their admission outweighed their probative response, value. argues State photographs are relevant because they “visually communicat- ed the fact of the as well as murder[ ] the atrociousness of the crime.” admissible,
To be must photographs be introduced legitimate purpose some probative their value must outweigh prejudice Evans, caused their admission. See 692-93, at Md. A.2d at 133. In Johnson v. (1985), Md. 1 A.2d which involved murder trial photographs admitted, where several of the victim were we photographic for admitting the standard of review explained trial: during guilt phase of evidence photo- or not a consistently “We have held whether at trial is value a case and admissible practical is of graph the trial judge. discretion of matter left the sound Jaest be this area will not disturbed A court’s determination standard, we have arbitrary. Under plainly unless depict- photographs into reception evidence permitted injuries victim and the location of the condition ing deceased, body victim’s position upon the (Citations site, wounds the victim.” murder *46 omitted)'. 502, 8. Md. at 495 A.2d at Evans, of in we that the recently application
More observed issues proceeding “implicates rule in capital sentencing guilt at of predominate phase which different from those reiterated, 693, 133. We at 637 A.2d at trial.” however, for ... in no circum- way need caution that “[t]he authority; admission of evidentiary judge’s scribes the to the soundly remains committed photographs into evidence sentencing proceedings.” in judge capital of the trial discretion Id. of Wanda John photographs
In the instant
death,
including
circumstances
her
depicted
son
body,
are
and the location of her
which
gunshot wounds
“The
sentencing proceeding.
at
considerations
relevant
clarify
and com
evidence is
very purpose
photographic
accurately
the tribunal more
than
mere
facts to
municate
Johnson,
9. See also
503-04,
at
303 Md. at
words.”
Evans,
Moreover,
Md.
[State’s And isn’t it a fact that in 1988, you were convicted of a second-degree sexual offense? [Rogers]: Yes. Attorney]:
[State’s And isn’t a fact that in you were convicted of theft?
[Rogers]: Yes. Attorney]: 1995, And isn’t fact
[State’s it a that in you were convicted of a first-degree sexual offense?
[Rogers]: Yes. Attorney]: And you
[State’s were life sentenced to without possibility the of parole?
[Rogers]: Yes.
Maryland Rule 5-609 governs impeachment by prior It provides pertinent part: conviction.
“(a) For Generally. the of purpose attacking credibility the witness, a of evidence that the witness has been of convicted a crime shall be admitted if from elicited the witness or
190 the during examination of by public record
established (1) or witness, if crime was an infamous crime only but the (2) the credibility to the witness’s other crime relevant admitting value probative that the of court determines to the prejudice the of unfair outweighs danger evidence objecting party.” witness or (1974, 1995 Repl.Vol.), 2. also Md.Code footnote See See Art., § 10-905.12 Proceedings & Courts Judicial of objection any no counsel made Since defense State, claim error by of questions asked full for review. See discus properly preserved has not been II., A., error supra. Regardless, any in part subsection sion We evidence was harmless. allowing impeachment in this a first or not decide case whether therefore need falling is an crime” “sexual offense” “infamous second-degree (a)(1) of Rule 5-609.13 within the ambit of subsection impeachment improperly If the trial court had admitted say not objection, we could proper evidence over so as substantially harmed impeachment defendant Rogers’ of reversal. was well aware require that all his related to events given incarceration pertinent párt: 12. Section 10-905 states (a) prove of a general.—Evidence is admissible to the interest any any proceeding, witness in or fact his conviction if an Evidence of conviction is not admissible infamous crime. expired, appeal appeal or the pending, or the time for an has reversed, has and there has been no retrial conviction been reconviction. impeachment Maryland governing by prior con- Rule 5-609 crimes statutory provision. See Jackson trols over inconsistencies with State, 705, 3, 8, (1995); v. Md. 712 n. 668 A.2d 11 n. 3 Beales v. 340 263, 105, State, 273, (1993). 110 Md. Maryland distinguishes 13. We observe that law between crimes assault; secоnd-degree rape second-degree first sexual first and opportunity whether the latter and we have not had the to decide impeachment Compare purposes. offenses are "infamous crimes” State, 75, 83-84, 164, (1931)("There A. can be v. 161 Md. Green credibility by proof of impeached a witness be no doubt that can rape.”) a conviction of the crime of with Watson v. (1988)(holding attempted rape an is not A.2d impeachment purposes). infamous crime for *48 occurring during incarceration. does not contest Rogers’ robbery the use of theft and convictions for impeach- and, record, ment a purposes, upon review of the we cannot say that his admission sexual to the offenses was so prejudicial Moreover, as require to reversal as a matter of by failing law. object hearing, defense counsel precluded the trial court from making a determination pursu- (a)(2) 5-609, ie., ant to Md. subsection of Rule whether of probative admitting value outweighs evidence the dan- ger prejudice of unfair witness. We have previously clearly observed that this determination “is a trial matter of Giddens, court discretion.” State v. Md. (1994).
A.2d objection Without the benefit an court, a ruling objection on that from the trial absent extraor- present dinary circumstances not the instant we cannot say that the trial court abused discretion by its admit- Therefore, ting the im- impeachment evidence. even if the peachment improper, say evidence was cannot we admission reached that of harm magnitude level so require Thus, reversal. trial we hold that the court not did plain commit error in permitting impeach Rogers the State to with his for first prior second-degree convictions sexual assault.
L. Motion Regarding Handgun .38 Caliber eleventh issue the trial erro whether court neously Appellant’s denied motion to prevent introduction Appellant’s statement regarding to Monica Wilson cali .38 ber handgun. Appellant’s We note that motion to suppress his statement Wilson has not been for preserved review. Appellant filed motion in limine to prevent the of. admission concerning statement to Wilson the .38 caliber handgun, but he did renew objection his when evi during dence was sentencing introduced hearing. As II., I., in part discussed subsection supra, when the trial court limine, rules against objecting party’s motion in order to preserve objection review, complaining party still object must to the admission the evidence at it the time *49 1, Watson, at n. 535 311 Md. 372-73 at trial. See
is offered 1; Prout, 356-57, at at at n. 311 Md. A.2d 457 cf. II., A., full subsection part 448-49. also discussion See supra. however, objected, we properly if had Appellant
Even
Amend
argument
his
that the Sixth
no
to
would find merit
that
the
compels
Constitution
of the United States
ment
As it has
handgun
suppressed.14
the
be
concerning
statement
courts, the
of the
the
Sixth Amendment
interpreted by
been
waiver, the
absent a
prohibits,
States Constitution
United
criminal
when
defendant
admission of
statement
counsel;
(1)
legal
presence
is
outside
statement made
(3)
State;
(2)
after the
interrogation by
response
charge being
respect
with
right
counsel has attached
Moulton,
159,
474
106
v.
U.S.
generally
tried.
Maine
See
(1985);
447
477,
Henry,
481
United States v.
88
S.Ct.
L.Ed.2d
2183,
(1980);
v.
264,
L.Ed.2d 115
Massiah
100 S.Ct.
65
U.S.
1199,
States,
201,
As acting agent as an not contest Wilson was case does outside the statement made the State or counsel; only before us concerns issue presence i.e., had right whether counsel requirement, third “ Sixth and general person’s The is that ‘a attached. rule only to counsel attaches right Fourteenth Amendment been adversary judicial proceedings have after time that ” Gouveia, 467 United States v. against initiated him.’ U.S. 146, 2292, 2297, 180, 187, 104S.Ct. 81 L.Ed.2d 154 682, 1877, 1881, Illinois, 688, 32 406 92 S.Ct. (1984)(quoting v. U.S. Kirby provides prosecutions, all criminal "[in] 14. Sixth Amendment enjoy right shall ... to have the assistance counsél.” the accused applies through the Fourteenth Amendment states The Sixth 792, 335, Wainwright, 9 v. 372 U.S. 83 S.Ct. Amendment. Gideon (1963). L.Ed.2d 799
193
411,
(1972));
49,
L.Ed.2d
417
see
340 Md. at
Whittlesey,
also
Gouveia).
just
A.2d at
Not
(quoting
any adversary
665
232
however,
protections,
invoke the constitutional
proceedings
“
right
because
‘the
Amendment
...
is
[to counsel]
Sixth
”
50,
“The statements .38 regarding the were made Monica Wilson ... Mr. in Conyers when He custody. had been charged in the Bradshaw He not charged offense. had been in yet the Johnson homicide. She was a agent State at just time those were made. areWe to make a going brief argument on Sixth grounds Amendment that the Sixth Amendment had right attached at the time charged he was [murder], with the Bradshaw and while the Sixth Amend- ment certainly is offense-specific, the Court Supreme has recognized carry-over exceptions that right that can attach yet to offenses that if have not been charged those related, offenses if closely are there is—it’s even been held to say inextricably related.
It’s been addressed of Appeals the Court in 1995 in a case Whittlesey called v. they agree State where that there can be a carry-over, and that that carry-over has occur proof identical, when two is essentially crimes offenses, in accord- was used both of those the .38
because would that that evi- expert, argue to the bаllistics we ing reason, identical, that would ask and for that we dence not Amendment.” statement come on Sixth that Sixth Amend- Appellant’s that argues response The State at time his conversations not attached rights ment had only charged he had been point Wilson because at that with Bradshaw, Fur- and not Wanda Johnson. with the murder ther, not carry-over exception that the does the State contends the murder since the murder of Wanda Johnson and apply sufficiently not closely Bradshaw were related. Amendment
We
with the State
the Sixth
agree
statement
the admission
prohibit
would
we
objection.
Initially,
if he
his
properly preserved
even
had
Whittlesey
hearing
incorrectly
cited
note that
of the
acceptance
for our
motions
stand
presentencing
Sixth
to the
rule
“carry-over” exception
general
Whittlesey,
we
explored
is offense-specific.
Amendment
as it
in the
great
carry-over exception
developed
has
detail
Moulton,
supra,
of the
decisions
Supreme
wake
Court’s
Williams,
Brewer v.
U.S.
97 S.Ct.
51 L.Ed.2d
(1977).
compelled
whether these two cases
questioned
We
Whittlesey,
Md.
recognition
carry-over exception.
of the
n.
acknowledged
at & n.
“The right only to counsel carries over to new been arising [pending] from the same acts on which the charges charges were based. To determine whether same acts of charges, identity underlie both courts have looked for time, required identity and conduct. Some have also place, employed prosecuting sovereign. by Another test at least one court is whether the statements elicited (Citations constituted evidence of both offenses.” police omitted). quotations internal at 235. reviewing Md. A.2d After various cases “carry-over” exception,
that considered the
we concluded that
it
not
apply
Whittlesey’s
did
that case
exclude
statements
to an informant that
him in
implicated
Applying
a murder.
time,
test,
identity
place, and conduct
we observed that
Whittlesey’s statements had been made after he had been
charged
making
with
false
to a
statements
state official re-
garding
investigation of the same murder. We concluded
that “the
charge
false statements
and the murder chargе are
‘closely
related’ offenses. The false statements occurred
murder,
days after the
in another location. The conduct was
distinct;
also
...
committing
separate
crime is
from an
Whittlesey,
attempt
responsibility
avoid
for it.”
As the instant there is no identity case time, place, and conduct. The statement seeks to Appellant suppress charged occurred before was ever with the murder, Johnson which was an from event distinct the Brad- Although Appellant charged shaw murder. had been with the murder, Bradshaw separate murder involved conduct place which took at a different location than 24 more hours Moreover, Whittlesey ex- after the Wanda Johnson murder. pressly recognized “committing separate a crime is from Thus, to avoid responsibility for it.” Id. Whittle- attempt an sey compels rejection Appellant’s argument our that simply because the Bradshaw murder committed conceal the Wanda Johnson sufficiently “closely murder the two are relat- purposes ed” for the of the carry-over exception.
196 time, identity of considered the most courts have
While
carry-over excep
of the
application
test for
and conduct
place,
which,
test,
as we
tion,
same evidence
looks
Appellant
by a lower
employed
had been
acknowledged Whittlesey,
carry-over
ex
to determine whether
Pennsylvania court
Pack,
A.2d
Pa.Super.
420
616
In re
applied. See
ception
(1992).
the statement
contends that since
Appellant
of those
“was used
both
handgun
.38 caliber
regarding
offenses,
argue
we would
according
expert,
to the ballistic
reason,
con
Appellant
For this
identical.”
that evidence is
exception
apply.
should
carry-over
that the
tends
time,
place,
identity
that the test of
we believe
While
consid-
Amendment
accurately reflects
Sixth
conduct more
test is
issue,
preferable
not consider which
at
we need
erations
misinterprets
applicability
Appellant
believe that
since we
In
after we concluded
Whittlesey,
test.
of the same evidence
the defen-
apply
carry-over
did not
identity
that the
test
the same
we also addressed
rights,
Amendment
dant’s Sixth
Whittlesey’s statements
acknowledged that
evidence test. We
the false
support
informant could be used
to the State’s
but wé also
charge,
as well as the murder
charge
statements
the false state-
proved
could have
the State
observed
charge. Whittlesey,
proving the murder
charge
ments
without
56-57,
that the “false
at 236. We noted
Md. at
A.2d
evi-
supported
[other]
could have been
charge
statements
dence____
Furthermore,
many
disprove
the State could
having to
police
to the
... without
statements
appellant’s
Similarly,
killed
Id.
appellant
[the victim].”
show that
had
killed
proved
Appellant
have
this case the State could
showing
at issue and without
without the statement
Bradshaw
Thus,
as we stated Whittle-
Johnson.
had killed
Appellant
necessarily require
crimes
for the two
does
sey,
proof
“thе
We
circumstances
not
unconstitutionally compel imposition
did
v.
in which
penalty.
death
Hunt
a case
Hunt
argument Appellant,
made a similar
we stated:
argues
“Hunt
that the
form
sentencing
unconstitutionally
makes the death
it
penalty ‘mandatory’ because
indicates
that
if
should enter ‘death’ as the sentence
it finds
aggravating
outweigh
circumstances
the mitigating
rejected
circumstances. We
a similar contention in State v.
Tichnell,
428,
(1986)
467,
1179,
...;
509
Md.
A.2d
Calhoun,
accord State v.
nia penalty provided death statute which verdict “[t]he if must be sentence of death the jury unanimously finds at least aggravating one circumstance ... and no mitigating circumstance or if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating ’ [302], circumstances.” Id. at 110 S.Ct. 9711(d)(6) § 42 Pa.Cons.Stat. (quoting at 261
L.Ed.2d
(1988)).
unconstitutional-
provision
whether the
Addressing
sentence, the Court said:
the death
ly mandated
conviction
automatically imposed upon
‘Death is
only
It
after
imposed
of murder.
types
certain
out-
circumstances
aggravating
determination
partic-
present
circumstances
weigh
mitigating
defendant, or that
by.
particular
committed
ular crime
* *(cid:127)*’
circumstances.
mitigating
such
there are no
1082-83, 108
[305],
L.Ed.2d at 263.
110 S.Ct. at
Id. at
...
is es-
sentencing form
Maryland
penalty
death
It
Pennsylvania
provides
statute.
sentially identical to the
*54
circumstances as
under the same
jury
that the
enter ‘death’
instruction
requested
statute. Hunt’s
Pennsylvania
form
Maryland
death sentence
‘necessary
prevent
not
to
”
unconstitutionally mandating
penalty.’
death
from
Evans,
443-44,
also
333
Appellant’s (1) it requires unconstitutional because facially statute is (2) circumstances; it re- mitigating to establish defendant miti- that non-enumerated the defendant establish quires (3) are, fact, it re- mitigating; circumstances gating circumstances prove aggravating that the quires State by only preponder- circumstances outweigh mitigating higher than some standard. ance of the evidence rather
199
statute is
holding
Maryland’s
penalty
death
from
unconstitutional,
following
we reiterate the
facially
I,
576,
(quoting Perry
1. The sentence of death was not under the imposed arbitrary
influence of or other passion, prejudice, any factor; . findings
2. The evidence the trial court’s of a supports 413(d); § statutory aggravating circumstance under and that the finding trial court’s supports the 8. The evidence cir- mitigating outweigh circumstances aggravating cumstances. AFFIRMED.
JUDGMENT n C.J., RAKER, J., BELL, in which Dissenting by opinion ELDRIDGE, J., join. and
RAKER, dissenting: Judge, for of the Circuit Court judgment
I reverse the would sentencing for a new and remand the case County Wicomico I Accordingly, respectfully dissent. proceeding. error several re- trial court committed reversible (1) an express opinion Detective Marll to permitting
spects: credible; witness Charles Johnson key prosecution (2) examination of erroneously restricting the direct Arthur McLee. Rogers defense witnesses Ventura
The Preservation Issues matter, disagree general approach I with the As a threshold respect question preser- with majority taken at 147. The Maj. op. review. appellate vation of issues “ tried ‘the majority goes great length emphasize apply still procedure [in rules of evidence' and and tested ” cases],’ Bruce v. maj. op. (quoting at 150 penalty death (1992)), 594, 611, Md. object to the admission of counsel wishes to where evidence, in a fashion or the timely or she must do so he for review. Counsel should preserved issue will not be Court, court, to do their any reviewing on this or rely Furthermore, we have for them after the fact. thinking in a with the penalty potential stated that even death outcome, cannot continue ad finality litigation of its infini- ‘withholding framing through tum counsel issues Foster, 305 Md. at differently each time.’ questions at 1331. A.2d *56 Then, to the contradiction apparent at 151. Maj. op. exhortations, [its] to “exercise majority proceeds previous raises, all of the issues briefly and discuss discretion Maj. at 151. op. ones.” eight unpreserved including the I suggest are not preserved, issues that addressing When 4-325, First, respect with Rules following framework. evidence, 5-103, rulings on instructions, respect to with jury much as 8-131, generally, apply to trial error respect with is no in other cases. There they as do capital cases cases. Sec- capital of those rules stated exception rules, an ond, implicitly, permits or explicitly of those each unpreserved resolve otherwise court to address and appellate Third, will not appellate court exercise ordinarily, issues. vitality the rules retain important It is that discretion. have the merely hortatory. They regarded and not be to be resolved allowing all issues salutary purposes court, the unfairness of preventing instance the trial by first conceal and theory the case on one allowing party try theory proves in the event that appeal other issues for reserve in a unsuccessful, Finally, averting unnecessary appeals. death, ease, or because the ultimate issue is one life capital to review readily this Court should more exercise its discretion wrong, if challenged ruling, issue when the unpreserved an failure to truly prejudicial preserve would have been and the not a matter of trial tactics. likely discretion, its deciding whether or how exercise (1) unpre three hold the matter essentially Court has choices: all, for and leaving it at the reason served and address post- non-preservation vel non caused prejudice (2) conviction; affirmatively but unpreserved hold the issue the rules to address and the discretion allowed under exercise (3) merits; the matter issue on the hold resolve the dicta, for by way the issue only but address unpreserved court.1 post-conviction of a guidance subsequent might example, state: 1. For the Court 4-325(e) instructions, Rule states respect
With *57 error in may cognizance any plain an court “take of appellate defendant, instructions, of the rights material a object.” suggests step a failure to This three despite First, object once a failure to is found. was the inquiry, not, nothing If there is to notice. instruction erroneous? Second, erroneous, “plain if it was did it amount to error?” Third, error, if it “was the error material to the plain was jury Because errors in instructions rights of the defendant?” law, fact, than of it is difficult generally are errors of rather errors, so the distinguish ordinary plain for me to between is, if really be a dual one. That the instruction inquiry may that, objection sufficiently proper erroneous had the been made, reverse, would then the court should appellate we of question prejudice. examine the on a options applied case-by-case The three basic should be If that issue-by-issue ruling basis. would be error, or that in case of a alleged error was not instruction, defendant, it was not material to the of the rights a error or that it was harmless under broader harmless should, ordinarily, unpre- either not address the analysis, we it unpreserved served issue or hold that it was and address It only general practice. pre- dicta. That should be the rules, vitality implements salutary serves the of the their function, harm to practical arid does no the defendant. practice
There are two circumstances which different if, reason, may justified. guidance be One is for whatever cases; is in other it is somewhat the same important the issue justification addressing points. for moot See Coburn v. Cob (1996) urn, 244, 250, (stating 954 if address the merits of a moot case is “may [it] the Court issues in matters presents convinced that the case unresolved that, decided, if of concern will establish a important public preserved, we Because the issue was not shall not address it in this it, however, (i) appeal. Had we addressed we would have found no ..., (ii) beyond a merit because or error was harmless doubt because.... reasonable conduct”). circumstance, frequent rule future The more in, to, case, especially necessarily but not limited capital when we conclude either that was truly prejudicial, the error instruction, or in the of a jury rights case was material to the A of finding prejudice materiality, the defendant. sense, necessarily precludes a determination that error was harmless and probably satisfy preju would suffice prong dice Strickland v. Washington, U.S. (1984).
S.Ct. perspective L.Ed.2d From the administration, therefore, both fairness judicial and efficient we should address and resolve the issue and not it to leave future collateral proceedings. approach,
Under this this Court should examine unpreserved each issues and determine which of the *58 options If, issue, three basic to in examining take. the we error, would conclude either that there was no or that the (or harmless, error was in jury issue, the instruction not material to Conyers’s rights), we adopt should either the first approach of holding the issue unpreserved addressing and not it at all or the approach third of holding unpreserved issue addressing it If only dicta. the issue would have resulted a it preserved reversal had been and there is no indication that non-preservation awas matter of deliberate tactics, trial we should hold it unpreserved but affirmatively exercise and resolve it as a holding. When we make clear that discretion, we are exercising there is no inconsistency between holding non-preservation and resolution of the issue on the merits.
Detective Maril’s Testimony about Charles Johnson majority The that “Appellant holds deprived was not of a hearing fair by Marll’s testimony regarding prosecution wit- Johnson, ness Charles and reversal not Maj. warranted.” op. at 154. I disagree.
Whether Appellant was a principal in the first degree was a critical issue for this sentencing See jury. Maryland Code (1957, 27, 418(e)(1); § 1996 Repl.Vol.), State, Article Baker v. (1993) 542, 570, 783, 796 under Md. that (holding law, cases, those
Maryland except only in murder-for-hire first guilty degree principal individuals found murd.er death). to Charles degree may first be sentenced Johnson, Maryland Department inmate at the of Correc- an Thus, tions, this the State’s witness on issue. his primary was was question Conyers was central to the of whether credibility the death case consisted eligible for sentence. The defense credibility attack primarily upon of an Charles Johnson Conyers in an never confess- attempt convince Johnson, snitch, that he shot jailhouse ed Wanda Johnson. preserved appellate the issue not review
Although was trial, no objection testimony because there was majority no reasons majority holds there was error. opinion credibility that Marll not an as to Johnson’s did offer rather, as a that he as to the simply testifying witness but was statements, and that he had accuracy verified Johnson’s compared against each of them the documents the case. testify- Maj. op. majority at 154. The that Marll was believes himself, ing information, as whether Johnson’s Johnson I to be accurate and truthful. find found therefore rationale unsound. principle
Marll’s violates well-settled permitted express opinion witness is not an as to whether we said in Bohnert v. telling another witness is truth. As 266, 278, 539 (1988), “[tjestimony A.2d *59 from a of witness is relating credibility witness another me, rejected to be as a matter of To law.” “[tjhese knew which I them upon hearing statements from I be and able to each truthful, verify Mr. Johnson to was and that us” can as an every gave interpreted only statement he be bearing credibility of the expression opinion witness’s witness, of another Johnson.
. preserved the issue not for review Clearly, appellate was lodged objection. because defense counsel no This evidence my would into two of for category suggested fall framework I addressing preservation issues. would unpre- hold the issue but affirmatively served would exercise the discretion allowed rules to under the address and resolve the issue on merits. case, This is a capital highly prejudicial, the evidence is and there is no indication that non-preservation was a matter of trial strategy. deliberate The evidence was elicited rebuttal, State and the response witness’s was an unantic- ipated, gratuitous comment on Johnson’s I credibility. would hold the admission of Marll’s testimony regarding Charles Johnson of deprived Appellant hearing a fair constitutes reversible error.
Direct Rogers Examination Arthur of During direct examination of Arthur Rogers, defense coun- sought sel Rogers’s warning introduce two statements: Conyers that he not talk to should Johnson because Johnson looking inmates, at court documents Johnson’s “you statement that need take care number one first” as his reason into the looking court documents of other majority inmates. The concludes that prop- the evidence was erly First, excluded on grounds. several majority empha- sizes that while the court excluded defense counsel’s desired evidence, the judge permitted Rogers to testify that he warned not to talk with Johnson about his that the trial judge properly exercised his discretion limit- ing Second, the testimony. Maj. op. at 154. majority concludes that the statement that taking Johnson was care - number one first was hearsay. Maj. inadmissible op. at Third, 59. the majority holds that alleged error was beyond harmless Maj. reasonable doubt. at 160. op.
I agree that proffered defense, the testimony by the Johnson had Rogers “you told need to take care of number first,” evidence, one was hearsay. There is no proffered otherwise, that Rogers Conyers told alleged Johnson’s looking statement “he was out for number one first.” Rogers’s proffered testimony that Conyers he had warned that he should talk to Johnson because Johnson was *60 court was
looking improp- other inmates’ documents through render it This evidence was admissible to less erly restricted. all, spoke that to Johnson because the likely Conyers at. Johnson, Conyers to warning not' to talk to statement inmates’ looking through would have papers that Johnson was to motivated rational self-interest realize person caused his only gathering information for own that Johnson was point avoided. The critical should therefore be purposes, and convey jury Conyers, if to to the was that Conyers wished Johnson, not activity informed attributed to would have to permitted Conyers to him. the court ask spoken While talk, not to court Conyers he advised did Rogers whether Conyers to relate that he told that Johnson permit Rogers not looking testimony at other inmates’ Because papers. was restricted, conveying defense unsuccessful in to was was Conyers speak not to jury Rogers only that warned Johnson, explained Conyers Rogers but also that had “rifling” records of others. observed Johnson the court Rogers’s warning The information contained within Co- mind, Conyers’ nyers bearing had state of which turn John- directly testimony. to the of Johnson’s credibility went him Conyers Conyers that was the son testified that told that if theory Conyers shooter. The defense was was warned behavior, he not have to Johnson. of Johnson’s would talked evidence, may this it If the had heard not have believed likely have made it Johnson. Evidence would less Johnson, thus Conyers would have confessed more false, was have likely testimony Johnson’s would been critical of principalship. Principalship central issue Conyers’s directly governs eligibility a death sentence. admissible, cannot exclusion be evidence its considered harmless. this importance
Because of Johnson’s in the testimony played jury’s and the critical role his the trial court abused its dis- principalship, determination of Moreover, in excluding cretion the error was evidence. A.2d Dorsey not harmless. v. See (1976). reason, For I would reverse the sentence of death sentencing proceeding. and remand for a new *61 Direct McLee Examination Ventura of of the told to testimony warnings Conyers by The excluded Rogers’s McLee was admissible for the same that reasons testimony attempted was admissible. Counsel to elicit the of Conyers speaking substance McLee’s advice to about with warnings and not to to speak Johnson his Johnson. The was not and was the hearsay evidence offered defense to Conyers, having that been not to talk to show warned John- son, having of underlying been told the reasons the warnings, to likely actually spoken was less have to Johnson. prevented telling The trial court the witness jury from the the he gave substance the advice to As Conyers. discussed earlier, have jury testimony could found that McLee’s to likely tended make it less that would have Conyers spoken Johnson, likely turn more that Johnson’s credibility was not credible. Because Johnson’s was so crucial State’s I say cannot that was the error harmless. issue, for preservation As I would find that the error not preserved. Non-preservation applied be should obvious, technical ignore such a fashion as to and to the reality dynamics view, in the my courtroom. it was fairly judge obvious to the trial that defense counsel was seeking same information from as he sought McLee from Rogers. obvious, When the to a question answer counsel not proffer need See sought. the substance an answer 33, 46, Mills v. (1987), vacated A.2d and remanded on grounds other U.S. S.Ct. (1988).
by counsel avoid review, preserved appellate that issue is not although the error, error; it assuming no and that the trial court committed claim majority the merits was harmless. The addresses Maj. has merit. 177. op. that the issue no and holds made reasons that the had been aware majority death and that Appellant previously had sentenced to been overturned, he been but had simply had been sentence murder, and remarks tried convicted of that Gibson’s at 179. Reason- prior Maj. op. to refer to this trial. appeared have comment cannot be said tо ing vague that Gibson’s jurors received the death conveyed holds prior sentencing proceeding, majority in a penalty it preserved, if the claim of error was is without that even error, Maj. at 179. merit; moreover, if it is harmless. op. *62 it. and I not not would address preserved, The issue was following testimony in included comments: question trial, trying we to and we were years “It two before went was And, it, now, two it came it’s another to from and back. heal My in was we here here now. sister years, again and are back murdered, just family.” to the Because and it is unfair issue, no and holds that there was majority considers view, not error, I that in the comment was simply my note admissible; jury; it not issue before the was relevant State, 724, See v. thus, Williams it was Md. error. (1996). 736, 1106, 1113 679 A.2d Testimony Domestic Violence testimony in in admitting the court erred Appellant claims consisted of “other crimes” evidence. The evidence nature killing, testimony of Monica Wilson’s that week before the her; violent, mean, Appellant became threatened shoot that, and Wilson lived and her when a that “had together, Appellant handgun owned .38 caliber she him ... out pulled pulled ... out on and he on [her].” testimony. I objection lodged agree No was at trial majority Appellant’s objection with the the earlier did not for sentencing proceeding preserve the issue review. category I would hold that the issue falls within one: it review, for appellate I would not preserved was all, it at leaving post- address the issue consideration majority of the claim of conviction. The addresses merits error, so, in a and does manner that does violence the rules regarding crimes” capital sentencing “other evidence future proceedings.
The majority states: object failure to at the time the evidence effectively precluded
admitted the trial court applying from protections evidentiary set forth sentenc- capital 5-403, ie., 5-404(b) statute, ing Rule Md. and Md. Rule whether prejudice admitting outweighs the evidence its probative value. Our case 5- interpreting law Md. Rule 404(b) clearly holds that the of the weighing component test for admitting other crimes “implicates evidence the exercise v. Terry 329, the trial court’s discretion.” Faulkner, (1993) 631 A.2d (quoting State v. (1989)). 630, 635, Md. objec- an Without record, tion and court’s response the trial we cannot say whether trial discretion, court abused its and we will only if the error reverse caused substantial prejudice Appellant.
Maj. op. at The majority 181. apparently recognizes court, trial considering when whether “other crimes” evidence capital sentencing admissible hearing, apply should *63 5-404(b) Maryland Rule and the case law that interpreting Faulkner, rule, v. including State Faulkner. Under a court (a) considering “other crimes” evidence is to find required that (b) relevance; acts the have that special there is clear and (c) convincing occurred; that evidence the acts that the probative value is not outweighed prejudice. unfair 634-35, Md. аt 552 A.2d 898. however, proceeds,
The then majority analyze to the admis- sibility of legal “other crimes evidence” under a different 387, 431-32, Citing v. Hunt
standard. (1990), it states: in 413(e)(v), admissibility of evidence the governing Section provides the trial court with capital sentencing proceeding, a the ... court authority ‘any the to admit evidence sentence, provided value and probative deems of relevant any opportunity fair to rebut is accorded a defendant Johnson and Lawrence Brad- statements.’ Since Wanda handgun, with a .38 caliber Wilson’s shaw were both shot had a Appellant in the sentencing proceeding they and that had it out each pulled .38 caliber handgun a establish that was other helped prosecution murder, degree in the first to Wanda Johnson’s principal the death required prove was under which State 413(e)(1). Moreover, § capi- other penalty statute. See have the admission sentencing proceedings upheld tal we concluding that the evidence “other crimes” evidence after considering apply whether appropriate Hunt, ... we evidence of explained why death penalty. differently capital sentencing in a is treated other crimes guilt/innocence than of trial. phase “[The proceeding murderer, court as a convicted stood before the Defendant] as entitled to presumption not an accused defendant phase to the guilt/innocence irrelevant innocence. While trial, ‘dangerousness,’ criminal exem- defendant’s] [the conduct, sentencing in the past his was relevant plified by suggest any We do not evidence phase of trial.” admissible; trial is court dangerousness past violence its prejudi- must of the evidence and reliability evaluate the testimony in this cial on the defendant. Wilson’s impact Hunt, and, is as in significantly prejudicial, case ... which is of case evidence is “reliable information sentencing[,] ... probative value and relevant [and] to rebut opportunity accorded a fair [was] defendant statements.” - omitted). (citations
Maj. op. at 182 83 (cid:127) majority seems to craft would legal test which the court find that require probative evidence
211 sentence, relevant to and that the defendant is a fair accorded opportunity addition, majority rebut evidence. reliability would have the court “evaluate the of the evidence its on prejudicial impact defendant.” If the test majority does not include the clear and convinc Faulkner, ing evidence of I with requirement disagree 413(c)(v) test. does authorize the admission of Section does Hunt.2 other crimes evidence Neither generally. State,
The majority ignores
of Scott v.
holding
the clear
297
235, 249,
1126,
(1983),
Md.
465 A.2d
in a capital
sentencing proceeding, the
of
is
type
admissible evidence more
circumscribed than
a
It
penalty
non-death
case.
strain’s
portion
by
majority
2. The
of Hunt cited
involves
admission of
report.
presentence investigation
Spe-
information contained within a
cifically, the
trial court had admitted evidence of
written
two letters
escape
Hunt referencing
attempts,
"prison
reports
well
as
infraction
which
prison
detailed his violations of
rules forbidding inmates from
State,
387, 430,
218,
possessing weapons.” Hunt v.
321 Md.
583 A.2d
(1990).
presentence investigation
The Hunt Court
that a
noted
Id.,
report
capital sentencing
proceeding by
admissible
statute.
239;
413(c)(iv).
§
583 A.2d at
Art.
It is in
this context
Hunt
presentence
Court held that "reliable information contained in a
investigation report,
probative
which is of
value
and relevant
sen-
tencing, ordinarily
provided
is admissible
the defendant is accorded a
431-32,
opportunity
fair
rebut
statements.”
Id. at
death
5-404(b)
Rule
opportunity
and fair
rebut and
of relevance
*65
Faulkner,
set
in State v.
least
the test
out
applying
without at
(1989)
of
630,
admissibility
896
“other
Md.
552 A.2d
314
(1994 ed.), com
See
crimes” evidence.
McClain,
Evidence
5-404(b) (“This
Maryland
the
.provision
Rule
codifies
mentary,
law,
will
admissible
prior
which evidence of
acts
be
case
under
evidence,
v.
convincing
e.g., State
and
proved by
if
clear
896,
(1989),
630,
if
Faulkner,
634,
898
and
314
552 A.2d
Md.
to)
(having ‘special
of
relevance’
some
substantially probative
case,
in
than
show conduct
simply
issue
the
other
contested
Scott,
246-52,
”);
at 1132-
Under the by a court must find non-capital in a crimes” evidence occurred; prior yet, evidence that the act convincing clear and a sentenc- capital in admit that same evidence before order to death, only issue life or the court need jury deciding the ing act occurred. Nonethe- prior find “reliable” evidence less, are not inconsistent. This Court made the two standards context of “other crimes” evi- the determination that dence, by the trial court must find clear be admissible history it is The criminal is admissible statute if 3. defendant’s Maryland pre-sentence investigation report. Code in the See contained 4-609(d). (1957, § Repl.Vol., Supp.), Article act(s) convincing evidence that v. occurred. See Cross (1978). 468, 478-79, 763-64 reliability. protec- ensures Presumably, standard Faulkner, v. admissibility tions of State governing view, trials, my applicable evidence criminal are death sentencing proceedings. claim,
As majority to the merits reasons: initially, least the trial court have may [A]t considered the Appellant. only favorable to Wilson stated that couple week before the murder the had fighting been Appel- Wilson moved out of home she shared with break-up lant. The hostile relationship could have initially been viewed as circum- supporting mitigating involving emotionally stance disturbed state of mind at the time of murder.
Maj. op. at 183. I it find untenable conclude that the State’s introduction of of break-up evidence the hostile the Conyers-Wilson relationship could have been considered as best, mitigating very evidence favorable to At Conyers. the the is a double-edged evidence sword. Whether introduce call, question the evidence in a mitigator Conyers’s as was not one for the State.
Mitigating Circumstance Sympathy Mercy or majority The holds that claim of error regarding the trial court’s instruction on mitigating circumstances was not preserved Maj. op. review. at 166. I agree. The continues, however, majority if pre- concludes that even served, the thorough, instructions were viewed as a when whole, precluded juror a “from not considering a factor he or she as perceived mitigating by because it was not ‘raised ” Maj. evidence.’ I op. at 173. disagree.
The was jury as to non-statutory instructed mitigating factors “[a]ny causing you factor feel sympathy mercy toward the may defendant be by you considered as a mitigating long as by circumstance so such factor is raised
214 allocu was instructed that though jury Even
evidence.”4 re evidence, improperly the instructions nonetheless is tion to evidence. The non-statu consideration juror’s stricted on to be evidence factor not have based catch-all does tory, inherently thus, contradictory. were the instructions instruction a death sentencing a assessing whether invalid, has stated Supreme Court proceeding penalty that the tеst is charge juror could have understood the a reasonable
‘what
Franklin, 471
307, 315-16,
v.
Francis
U.S.
meaning.’
as
(1985). To
1965, 1971-1972,
215 It is in Maryland jury sentencing well settled in that is not confined to in proceedings determining the evidence a non-statutory Writing Court mitigator. existence 439, 474-75, 1236, Md. Foster v. 304 1254 (1985), Judge Eldridge pointed out:
A sentencing authority, unconvinced is appropri- that death ate, mitigating list as a may circumstance whatever factor or conclusion, may irrespective factors have to this led of what produced sentencing the defendant If au- argued. thority perceives anything relating to the defendant or the it crime which may causes believe death not be it appropriate, may treat such factor as a circum- mitigating stance it outweighs and decide that circum- aggravating stances. juror
I a believe that rational could interpret the instruction given this case as a requirement non-statutory mitigator be on based evidence. The was presented must instructions, with inconsistent creating a substantial likelihood jurors that one or more interpret would the court’s instruction as a upon constraint his or her duty to consider mitigating This is contrary law, factors. to Maryland such, and as it is error. Where the jury instructions are inconsistent par- incorrect, tially exists, and a possibility misunderstanding we should conclude the instruction is invalid. Such is the case here. 6, majority,
The in footnote from quotes Eddings v. Okla- homa, 104, 869, (1982) 455 U.S. 102 S.Ct. 1 L.Ed.2d Ohio, Lockett v. U.S. 98 S.Ct. L.Ed.2d (1978), presumably suggest mitigating circumstances must be solely based evidence the case. The cases do not support the majority’s position.
In Eddings, sentencing judge found as matter of law that he was unablе to consider evidence presented during sentencing hearing as the mitigating evidence of defen- family history. dant’s Id. 876. S.Ct. at issue Supreme before the Court that case was whether trial judge relevant, improperly failed consider the mitigating *68 not, defendant, majority as the and the presented by
evidence
states,
must be based on evidence.
mitigating factors
whether
Id.,
the
Supreme Court found
In that the rule Supreme explained Court develop “the law’s effort to court was reflected applying at punishment principled once consistent and system capital of the individ- uniqueness sensible to the but also humane and on to hold at at 874. The Court went ual.” Id. S.Ct. permitted cases must be capital that “the sentencer at mitigating factor.” Id. S.Ct. consider relevant at 875. jury
I conclusion that once disagree majority’s with the consider, it that it instruction as to what should given a broad jury that the conclude that “evidence” likely is more would during the they had heard consisted of all that seen and along opinions impressions. with their and proceedings, just sentencing hearing in a which jury participated had as exhibits photographs and were marked various documents not more into It is an if equally, and admitted evidence. that, conclusion, experience during the given this plausible have evidence sentencing hearing, would understood encompass physical the witnesses’ simply (6th ed.1990), Evidence exhibits. Dictionary, Law Black’s Cf. matter, probative “Any species proof, legally presented issue, by parties through an act at the trial of exhibits, witnesses, records, documents, con- the medium of ” added). objects, (emphasis crete etc... given by clearly trial court in this case is The instruction Court, nor by should neither be blessed this erroneous and judges legally trial appropriate.5 considered Maryland language is in either the Criminal 5. This not contained Jury Instructions or in D.E. Pattern Maryland Jury Aaronson, Criminal
Conclusion sum, I would vacate the sentence of death remand for a sentencing proceeding case new because trial *69 permitting court express opin- erred Detective Marll to an ion key prosecution witness Charles Johnson was credi- ble, and in the direct restricting Rogers examination McLee. Judge
Chief BELL and Judge ELDRIDGE have authorized join me to state that they expressed the views herein.
v. Joao et al. NUNES 89, Sept. Term, No. 1998. of Appeals Maryland.
Court
May 1999. (2d ed.1988). While'trial courts are Commentary Instructions required instructions, slavishly pattern to follow the safer course penalty death proceedings pattern is to conform the instructions. As required by 4-343(g), the form Md. Rule the issue was not raised party either and we should not propriety. consider its