David Leander Ford v. State of Maryland
No. 11
Court of Appeals of Maryland
October 26, 2018
September Term, 2018
Opinion by Watts, J.
Court of Appeals held that trial court properly permitted defendant‘s ex-girlfriend to testify about defendant‘s reaction to being told that he had to leave her home-specifically, that he “cursed [her] out, and he slammed back [] front door and left” as evidence of consciousness of guilt. Court of Appeals concluded that trial court did not err in determining that evidence of defendant‘s post-crime conduct was relevant to show defendant‘s guilty state of mind-specifically, that he was staying at his ex-girlfriend‘s home to hide from law еnforcement and did not want to leave because he wanted to continue hiding out and elude capture. Court of Appeals also concluded that trial court did not abuse its discretion in concluding that danger of unfair prejudice or considerations of cumulative evidence did not substantially outweigh probative value of evidence.
Case No. C-02-CR-15-000033
Argued: September 13, 2018
Barbera, C.J.
Greene
Adkins
McDonald
Watts
Hotten
Getty,
JJ.
Opinion by Watts, J.
Filed: October 26, 2018
Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.
The second issue concerns the admissibility of evidence of the defendant‘s post-crime conduct as consciousness of guilt, and specifically, the determination that such evidence was relevant and that the danger of unfair prejudice or considerations of cumulativeness did not substantially outweigh the probative value of the evidence. Here, evidence was adduced at trial that, after stabbing the victim, the defendant fled to his ex-girlfriend‘s home. Over objection, the trial court permitted the State to elicit testimony from the defendant‘s ex-girlfriend that, the morning following commission of the crime, she asked him to leave, and the defendant cursed at her, slammed the front door, and left. The trial court admitted evidence of the defendant‘s reaction to being told that he had to leave his ex-girlfriend‘s home as evidence of consciousness оf guilt.
As to the first issue, we hold that
As to the second issue, we hold that the trial court properly permitted the defendant‘s ex-girlfriend to testify about the defendant‘s behavior and reaction to being told that he had to leave her home-specifically, that he “cursed [her] out, and he slammed back the front door and left“-as evidence of consciousness of guilt. We conclude that the trial court did not err in determining that this evidence of the defendant‘s post-crime conduct was relevant
BACKGROUND
On August 7, 2015, in the Circuit Court for Anne Arundel County, a grand jury indicted David Leander Ford, Petitioner, for first-degree premeditated murder, second-degree murder, manslaughter, and carrying a weapon openly with the intent to injure. The charges arose out of an incident that occurred on the evening of July 8, 2015, during which Ford allegedly engaged in an altercation with Mohamed Bashir Eltahir and fatally stabbed him.
From September 19 to 22, 2016, the circuit court conducted a jury trial. At the start of trial, the prosecutor nol prossed the charge of first-degree premeditated murder. Also, at the start of trial, Ford‘s counsel moved in limine to exclude evidence that Ford had a “temper.” The prosecutor requested that the circuit court reserve ruling on the matter to “see how the trial plays out before [] mak[ing] an ultimate ruling on whether that evidence becomes relevant[.]” The circuit court agreed with the prosecutor and stated that it would “reserve on the issue of [Ford] ha[ving] a temper.”
During the State‘s opening remarks, the prosecutor set forth the State‘s theory of the case, positing that Ford instigated a verbal argument with Eltahir, and was responsible
Ford‘s theory of the case was that he acted in self-defense. During Ford‘s opening statement, his counsel posited that, although Ford insulted Eltahir, Eltahir was younger, bigger, faster, and stronger than Ford, and Eltahir was the aggressor who initiated physical contact. Specifically, Ford‘s counsel stated:
He had a choice to defend himself or he had a choice to get badly injured, perhaps even killed.
What [] Ford chose to do that night was to defend himself. . . . [Eltahir] is a security guard, he was drinking that night. [Yo]u are going to hear evidence that [Eltahir] is younger than [] Ford, faster than [] Ford, bigger than [] Ford, and stronger than [] Ford. And [] Ford is not the person [who] initiates any physical contact, that‘s [Eltahir].
So [] Ford finds himself being attacked by someone that‘s larger, someone that‘s stronger, someone that‘s faster, and someone that‘s bigger. And [] Ford makes a choice to defend himself. [] Ford is forced to react. The only goal that [] Ford had that day was to defend himself, and to make sure that he didn‘t get hurt.
* * *
[Eltahir]‘s death is certainly tragic, but it is not at all intentional. So I ask you to listen to all the evidence that‘s presented before you make a decision and you‘ll realize that [] Ford was in a situation where he was overmatched. He was in a situation where he was reacting out of fеar, and that he certainly wasn‘t the aggressor.
He made an offhand verbal comment but he was not the physical aggressor. And most importantly he had a reasonable belief that he was in [im]minent danger. And he had that belief because he was. He was in [im]minent danger. He was forced to react and he had absolutely no intent to kill him.
At the close of opening remarks, the prosecutor requested a brief bench conference. At the bench conference, the prosecutor argued that Ford‘s counsel‘s assertion that Eltahir was the aggressor “opened the door” for the State to introduce evidence “about whether [Ford] has a temper or not,” and “general evidence about” Ford‘s character for peacefulness or aggressiveness. According to the prosecutor, Eltahir‘s “nature for peacefulness [was] fair game at th[at] point, and because [the defense was] claiming self-defense, [Ford]‘s nature bec[a]me[] fair game.” Ford‘s counsel objected. After hearing argument from the parties, at this point, the circuit court ruled that Ford‘s counsel‘s statements during opening
As the first witness for the State, Barbara McQueen testified that she knew Eltahir for approximately six months and that she saw him “[a]lmost every day.” The following exchange occurred concerning McQueen‘s knowledge of Eltahir:
[PROSECUTOR:] Okay, and how about his demeanor, his personality?
[MCQUEEN:] Quiet, just overall a nice person.
[PROSECUTOR:] Okay. Did you have occasion to observe his peacefulness?
[MCQUEEN:] Yes.
[FORD‘S COUNSEL]: Objection.
THE COURT: Rephrase counsel.
[PROSECUTOR:] Okay.
[PROSECUTOR:] Did you have occasion to observe his nature with regards his, his nature I guess.
[FORD‘S COUNSEL]: Objection.
THE COURT: Overruled.
[PROSECUTOR:] Were you able to observe his demeanor and nature?
[MCQUEEN:] Was quiet, nice person. Nice to everybody.
[PROSECUTOR:] Did you see, observe whether he would get angry easily, or if it would take a lot to get him angry?
[FORD‘S COUNSEL]: Objection.
THE COURT: Rephrase Counsel, sustained.
[PROSECUTOR:] Did you have [the] ability to observe his character towards peacefulness or aggressiveness?
[FORD‘S COUNSEL]: Same objection.
THE COURT: Sustained, rephrase Counsel.
[PROSECUTOR:] In your contact, did you ever have [the] opportunity -- okay. Did you -- were you able -- aware of his reputation for peacefulness or aggression[?]
[FORD‘S COUNSEL]: Objection.
THE COURT: Overruled.
[PROSECUTOR:] Were you aware of his reputation for pеacefulness or aggressi[on]?
[MCQUEEN:] Yes.
[PROSECUTOR:] And what was that reputation?
[MCQUEEN:] We would sit on the bench and talk, and we went to restaurants and ate with him.
McQueen testified that, on the evening of July 8, 2015, she and her friend Katherine Platter went to the park near her apartment complex, where Eltahir and Kane were sitting on a park bench drinking. Eltahir was not drunk or slurring his speech, and was acting “[q]uiet and nice as usual.” At some point, Ford arrived carrying “two or three [shopping] bags[,]” which he put down at the end of the walkway before he sat on the park bench with Eltahir and Kane. McQueen testified that two women walked by, and described how an argument began between Ford and Eltahir:
[Ford] said, “Man I want to (expletive) your sister, he say, I wrap her hair around her head, and I want to (expletive) your sister“. And [Eltahir] said, “Man what are you talking about“. And [Ford] leaned over and said, “What, you don‘t understand what the (expletive) I‘m saying?” He said, “I said I
want to (expletive) your sister“. So then, that‘s how the argument started.
McQueen testified that, following this verbal exchange, Ford stood up and “got in [Eltahir]‘s face.” Eltahir also stood up, and Platter “jumped up, and [] got in between [Ford] and [Eltahir], and started pushing them apart.” Ford hit Eltahir, who stumbled back; according to McQueen, Ford hitting Eltahir was the first physical contact made during the altercation. Eltahir then hit Ford, who “fell back on his knees.” Ford got back up and hit Eltahir in the chest. McQueen saw Ford hit Eltahir “about four times” and saw Eltahir hit Ford only once. After Ford hit Eltahir in the chest, Platter told Eltahir to sit down, and as Eltahir began to sit, he told Ford: “Since you say (expletive) my sister, (expletive) your mother[.]” Ford started “hitting” Eltahir again, and when Eltahir sat down, McQueen saw blood. Ford told Kane to grab his grocery bags, and then both men ran. As Ford passed by McQueen, “[h]e had [a] knife in his hand, and he had blood running down his arm.”
Subsequently, McQueen telephoned 911. Law enforcement officers responded to the 911 call and McQueen was interviewed by detectives. Detectives showed McQueen a photographic array, and she identified Ford as the person who stabbed Eltahir. McQueen acknowledged telling detectives that she was “about fifty percent sure[,]” but testified that there was no doubt in her mind that Ford stabbed Eltahir, and she identified Ford in the courtroom.
On cross-examination, McQueen acknowledged telling law enforcement officers the following in an interview: “And then after that, I basically really couldn‘t see too much, because [Platter] was, big as she is, was standing up there, and then when she turned around, that‘s when we saw all the blood[.]” Later on cross-examination, though,
As a witness for the State, Kane testified that, as of July 2015, he had known Eltahir for approximately six months, and they were “close friends.” The prosecutor asked Kane to describe Eltahir, and Kane testified: “He was a, you know, quiet, you know, quiet person. You know, we always sat and talked. . . . And he was never, you know, hostile or anything.” Ford‘s counsel objected, and the circuit court sustained the objection. The prosecutor asked to approach, and at a bench conference, stated that she was seeking Kane‘s opinion as to “Eltahir‘s character for peacefulness.” The circuit court stated that it had sustained the objection because of “[t]he context of the question.” Ford‘s counsel argued that a proper foundation had not been laid. The following exchange occurred:
[PROSECUTOR:] They said that the victim was the aggressor, in that, that their client wasn‘t the aggressor. That their client -- I‘m not asking about his character at this point, it‘s the victim‘s character. . . . And I believe that in opening, when they throw the issue down that my person was the aggressor, that I am able at that point, under that rule to rebut it. They said that their client only reacted out of fear. That . . . [the] victim was the aggressor. That he was only defending himself.
THE COURT: You did say that, counsel. . . . In your opening.
[FORD‘S COUNSEL]: Well, . . . the issue though, is . . . that‘s not evidence. And as far as the state of the evidence goes, there is nothing to rebut as of yet.
THE COURT: . . . [T]he Court did not rule that you had opened the door for purposes of those discussions, as they related to [Ford.]
In this particular case, you painted the victim as the faster, bigger, stronger, struggle that he was not -- your client was not the aggressor that the other fellow was. And his responses were out of scare [sic], and reaction, and the fear[.]
* * *
[FORD‘S COUNSEL]: Right, but . . . there was no statement in the opening that [] Eltahir was an angry -- or that he was (inaudible few words). It‘s much more a description of his physical -- it‘s not about his peace --
THE COURT: You said your client acted out of fear because the other fellow was the aggressor. . . . The prosecution may offer evidence of his traits for peacefulness. And the evidence in this case, although not evidence in the traditional sense, . . . you have, however, opened the door and she may present testimony that the victim, in this case, was of a peaceful nature. That‘s what the testimony is going to be.
Or testimony that would rebut [] your opening about his aggressiveness.
After the bench conference, the prosecutor asked Kane about his opinion as to Eltahir‘s peacefulness during the following exchange:
[PROSECUTOR: D]id you have an opportunity to -- so you talked about how you interacted with [Eltahir], did you have an opportunity to see him interact with other people?
[KANE:] Yes.
[PROSECUTOR:] Okay, and based on what you saw with his interactions with other people, and how [h]e was with you, did you form an opinion as to [Eltahir]‘s peacefulness?
[KANE:] Yes.
[PROSECUTOR]: And what was that opinion?
[KANE:] He was --
[FORD‘S COUNSEL]: Same objection, Your Honor.
THE COURT: Overruled.
[KANE:] He was a cool person. He was never, you know nasty or hostile, or anything.
Kane testified that, on the evening of July 8, 2015, he and Eltahir picked up some beer from a liquor store and then sat on a park bench; Eltahir also had some liquor. McQueen and Platter joined them. Eltahir did not appear drunk, and was not slurring his words or stumbling. At some point, Ford arrived with groceries, which he put down on the sidewalk before sitting down on the bench. Ford sat down next to Kane and began talking to Eltаhir. Ford told Eltahir “I want to (expletive) your sister[,]” which caused Kane to get up and move because Eltahir did not “really like you talking about his family[.]” Kane testified that, when someone talked about Eltahir‘s family, Eltahir would “get mad. He wasn‘t getting like, you know, mad, mad, like that. He would just, you know, be upset.”
After Kane got up and moved, he walked back and forth because he “was a little tipsy[,]” and Ford and Eltahir were “arguing back and forth, or talking back and forth.” At some point, Ford and Eltahir stood up, and Platter stepped between them, “trying to stop them from fighting or whatever they w[ere] getting ready to do.” Kane saw Ford and Eltahir “pushing each other back and forth[,]” but he did not see “who pushed who first” because he had his back turned. At some point thereafter, Kane saw blood on Eltahir‘s shirt. There had not been blood on Eltahir‘s shirt before the physical altercation with Ford, and nobody other than Ford had touched Eltahir. After Kane noticed that Eltahir was bleeding, Ford “told [Kane] to take his bags to” someone named Dewey, so he “grabbed
Law enforcement officers interviewed Kane, who initially falsely said that he did not see anything and that he was not present during the altercation. According to Kane, he “didn‘t want to be there” or “be involved” because he was on probation for “stealing” and had “a couple of convictions for stealing[.]” After Kane learned that Eltahir died, however, he told the officers the truth. The officers showed a photograph array to Kane, who identified Ford as the person who stabbed Eltahir. Kane told officers that he was “a hundred percent” sure about his identification of Ford. Kane also identified Ford in court.
On cross-examination, Ford‘s counsel questioned Kane about Eltahir‘s reaction to Ford‘s statement about Eltahir‘s sister. Kane testified that Eltahir became upset, and that Eltahir and Ford eventually started “pushing back and forth.” Kane denied, however, that Eltahir “jump[еd] up” or “lunged at [] Ford[.]”
As a witness for the State, Brown testified that she used to date Ford, but they had broken up approximately seven or eight months before July 2015. On the evening of July 8, 2015, Ford arrived at Brown‘s home unannounced, and asked Brown for a favor. Ford asked if he could stay at Brown‘s home “for a while because he said that he had got[ten] into a confrontation with a friend of his, or something. And the friend hit him in his head, and he stabbed him.” Brown asked Ford why he did not wait for law enforcement, and Ford replied that “he was afraid, he didn‘t want to get into that[,]” and that he “was scared” of “[t]he police with all the drama with -- because the guy had hit him first, or something,
Ford told Brown that he had first stopped at his mother‘s house and “that‘s where he left the knife . . . [t]hat he had stabbed the boy with.” Ford told Brown that he had left the knife “with the shed, behind the shed, or something” at his mother‘s house. Brown saw “a gash on [Ford]‘s arm” and used peroxide and ointment on it. Ford told Brown that Eltahir had “stabbed him there[,]” although Ford did not say that he saw Eltahir with a knife-only that “they was struggling around.” When Brown suggested that Ford go to a hospital, Ford “said no . . . [b]ecause they [were] going to lock him up.”
The following morning, Brown advised Ford that he could not stay at her home and “that he had to go.” The prosecutor then asked Brown: “What was [Ford‘s] reaction when you told him he could not stay?” Ford‘s counsel objected, and the circuit court initiated a bench conference, at which Ford‘s counsel argued that Ford‘s reaction was “completely irrelevant” and “more prejudicial than probative.” The prosecutor responded that Ford‘s reaction went “to consciousness of guilt. He‘s wanting [Brown] to allow him to stay there, so that he can hide.” The prosecutor explained:
Consciousness of guilt, his reaction, you are not allowed to stay here, you have to get out, and he‘s very angry at her for doing that. I think it goes to - I think it‘s probative as to how he‘s acting and conducting himself after this. He‘s running, he‘s hiding, and he‘s now really angry when they ask him to leave.
The circuit court overruled the objection, telling the prosecutor: “Okay. You are allowed to (inaudible few words). But [do] not go into any (inaudible word).” The prosecutor
Brown‘s testimony resumed, and the following exchange occurred:
[PROSECUTOR:] So you told him he had to leave about seven a.m., what was his reaction to that? When you told him he had to leave?
[BROWN:] I don‘t want to say what he said to me. He left.
[PROSECUTOR:] Could you -- no, we unfortunately need to use those words here, in the courtroom.
[BROWN:] He said (Expletive) you --
Ford‘s counsel objected, stating that the prosecutor‘s question was “formed differently than the previous question that [he] had objected to.” The circuit court asked the prosecutor to “[r]e-ask [her] first question[,]” and the following exchange ensued:
[PROSECUTOR:] What was his reaction when you told him he had to leave?
[FORD‘S COUNSEL]: And I would just for the purpose of the record renew my objection.
THE COURT: I understand that. Ma‘am what was his reaction when you told him to leave, what was his reaction?
[BROWN]: I don‘t know what you want me -- to respond and say. To say what? He was upset? I don‘t know what you want. He was upset all night so -- that was just the icing on the cake.
[FORD‘S COUNSEL]: I would object, I would object at this point. . . . And I would just ask the record to reflect that the witness is asking for guidance from the [prosecutor].
[BROWN]: No.
[FORD‘S COUNSEL]: Who obviously is not providing any guidance.
THE COURT: No, no, no, stop, everybody.
[BROWN]: No.
THE COURT: Everybody, everybody make it simple. Ma‘am, it‘s just a very simple question, okay, it‘s just a very simple question, if you can answer it. And if you can‘t answer it, indicate you can‘t. The question was, when you told him that he could not stay, what was his reaction?
[BROWN]: Am I supposed to tell you what he said, or what he did?
THE COURT: What he did, not what he said. . . . Tell me, that was the first question, what was his reaction.
[BROWN]: -- he cursed me out, and he slammed back the front door and left.
Brown testified that law enforcement “tackled [Ford] down out in the parking lot [a]bout two, three minutes” later.
As a witness for the State, Detective William Ballard of the Fugitive Apprehension Unit of the Anne Arundel County Police Department testified that he was part of the team that apprehended Ford on July 9, 2015. After Ford was arrested and handcuffed, he was placed in Detective Ballard‘s unmarked vehicle. Detective Ballard sat with Ford in the vehicle while awaiting instructions on where to transport Ford. At that point, Ford had not been told the reason for his arrest. Detective Ballard did not ask Ford any questions while the two were in the vehicle, but Ford made statements. Over Ford‘s counsel‘s objection, Detective Ballard testified that, as detectives were approaching Brown‘s home, Ford “said that they had nothing to do with this.” Detective Ballard advised Ford that the detectives “just needed to identify the residence for further investigation, or something[,]” to which Ford responded “he did not want them to lose their house and that there was nothing in
While Ford was being transported, he “continued to make statements,” telling Detective Ballard “that he cut me. He . . . motioned to his -- I believe it was his right arm -- which was a bandage on his right arm.” Ford also asked Detective Ballard: “[H]ow‘s he doing?” Detective Ballard advised Ford that he did not know anything about the case and that other detectives would speak with Ford shortly. “[A]t that point[, Ford] began to ask [] more questions[,]” so Detective Ballard advised Ford of his rights, and Ford made no further statements about the incident.
As a witness for the State, Detective Kelly Harding of the Anne Arundel County Police Department testified that she was the lead detective in the investigation of Eltahir‘s homicide. Detective Harding identified Ford as a potential suspect because McQueen and Kane identified him in photographic arrays. After Ford was arrested, Detective Harding advised Ford of his rights, and she and her partner, Detective Jason McNemar, interviewed Ford.
Parts of Detective Harding‘s and Detective McNemar‘s interrogation of Ford were played for the jury, and, over Ford‘s counsel‘s objections, the circuit court admitted the recording and transcript of the interrogation. During the interrogation, Ford advised the detectives that he “cut” Eltahir and the following exchanges oсcurred:
[DETECTIVE HARDING]: And so we‘d like to kind of hear your side of - of what exactly he said and - and - and what happened.
[FORD]: You know what, it happened so fast, I‘m being honest, I don‘t even remember.
[DETECTIVE HARDING]: You don‘t remember what he said?
[FORD]: I have no idea. I - I know he hit me.
[DETECTIVE HARDING]: Okay, where did he hit you?
[FORD]: And I‘m 59 years old. I‘m 58 years old, he hit me in my face. In my jaw.
* * *
[DETECTIVE HARDING]: Why? Why, do you remember why?
[FORD]: Yeah, ‘cause I don‘t know, it was something about - it some girls walking by and I mentioned they, his culture. They looked like his sisters. And he said, “You talking about my sisters like that?” And I said, “Don‘t - you getting all offensive but you sleeping with them?” Like and - and he went off. He jumped up, he clocked me, that‘s it.
[DETECTIVE HARDING]: And then what happened?
[FORD]: That was it. That‘s it.
[DETECTIVE HARDING]: And he hit you?
[FORD]: Yeah.
[DETECTIVE MCNEMAR]: And then what happened after he hit you?
[FORD]: That‘s when I told him, “You done messed up,” and I cut him.
[DETECTIVE HARDING]: You cut him? Do you remember where you cut him?
[FORD]: No. . . . I‘m telling you, I don‘t even, I don‘t remember. It happened so fast, I don‘t.
* * *
[DETECTIVE HARDING]: So how did you get this cut on your arm?
[FORD]: From him. I don‘t remember what he cut me with. He cut me with something, I don‘t know if he had a knife or what. I told you, I don‘t remember. . . . This thing happened so fast, I still don‘t remember. I‘m not
even seeing it. I just remember seeing the blood on him and him saying, “You cut me. You f[***]ing cut me, you f[***]ing cut me.” You know, I heard him say that, that was it. * * *
[DETECTIVE HARDING]: Okay. So what did you do with the knife that cut him?
[FORD]: I hid it. . . . It‘s down on . . . my mother‘s property.
* * *
[DETECTIVE HARDING]: Is it, does it have a color handle?
[FORD]: Yeah, it‘s got a blue handle.
[DETECTIVE HARDING]: A blue handle? So when he punched you did - did he knock you out or anything like that?
[FORD]: No, it just hurt me and I went to swing and that‘s all I remember.
Detective Harding testified that she arranged for law enforcement to go to Ford‘s mother‘s property to recover the knife that he hid.
As a witness for the State, Emilie Dembia, a forensic chemist at the Anne Arundel County Police Department‘s crime laboratory, was accepted as an expert in forensic serology and DNA analysis. Dembia testified that she obtained DNA profiles for Ford and Eltahir, and compared those profiles with ones that were obtained from various items of evidence. Dembia took three different samples from the knife-“a sample from the handle,” “a sample from a stain on the blade of the knife,” and “a sample from around the stained areas on the blade of the knife.” Dembia testified that “a major component of” the sample from the handle was consistent with Ford‘s known DNA profile, “Eltahir was excluded as the source of that major component[,]” and “[t]he minor compоnent . . . was
too limited to make any conclusions about.” Dembia testified that the “DNA profile from the stain on the blade and from the blade matche[d] the known DNA profile of [] Eltahir” and “Ford [was] excluded as the source of this DNA.” Stated otherwise, the sample from the handle of the knife matched Ford‘s DNA profile, and the samples from the blade matched Eltahir‘s DNA profile. On cross-examination, Dembia acknowledged that there was not enough DNA on the knife‘s handle to be able to make any conclusions about the minor contributor. That meant that Dembia could not include or exclude Eltahir as the minor contributor with respect to the knife‘s handle.As a witness for the State, Dr. John Stash, an Assistant Medical Examiner with the Office of the Chief Medical Examiner in Maryland, was accepted as an expert in forensic pathology. Dr. Stash testified that he oversaw the autopsy of Eltahir, who was “a well-developed, well-nourished male, six feet in height, 149 pounds.” Eltahir “had a stab wound on the left side of [his] chest[,]” which was “consistent with a single-edged knife” and “approximately three-and-a-half inches” deep. Toxicology tests were run, and Eltahir tested positive for ethanol at “0.19 percent” in his heart and “0.25 percent” in his eye fluid. Dr. Stash concluded that Eltahir “would be intoxicated.” Dr. Stash did not observe other injuries to Eltahir, such as cuts on his arms or hands or signs of bruising. Dr. Stash testified that the knife in evidence was consistent with the injury to Eltahir‘s chest. Dr. Stash opined to a reasonable degree of medical certainty that the cause of Eltahir‘s death was “a stab wound to the chest” and that the manner of death was homicide.
After the State rested its case, Ford‘s counsel moved for judgment of acquittal as to carrying a weapon openly with intent to injure, arguing that the knife did “not meet the
Following closing arguments, the jury began its deliberations. The jury found Ford guilty of second-degree murder. On December 20, 2016, the circuit court sentenced Ford to twenty-five years’ imprisonment, with all but twenty years suspended, followed by five years’ probation.
Ford appealed. On December 20, 2017, in a reported opinion, the Court of Special Appeals affirmed Ford‘s conviction. See Ford v. State, 235 Md. App. 175, 204, 175 A.3d 860, 876 (2017). The Court of Special Appeals held that the circuit court properly admitted evidence of Eltahir‘s character for peacefulness, explaining:
We hold that the circuit court reasonably allowed McQueen and Kane to testify to Eltahir‘s character for peacefulness in response to Ford‘s opening statement. . . . The reasonableness of the court‘s decision here is underscored by the three decisions discussed above . . . allowing trial courts to admit otherwise inadmissible evidence for the purpose of anticipatory rehabilitation and rebuttal. Because
Maryland Rule 5-611(a) gives trial courts the discretion to allow anticipatory rehabilitation, it could reasonably be interpreted as providing trial courts the discretion to allow anticipatory rebuttal evidence underMaryland Rule 5-404(a)(2)(C) . Such a conclusion would be consistent with the dicta [in one case], which would allow the anticipatory rebuttal of evidence referenced in an opening statement. Under these circumstances, we cannot say that the [circuit] court acted in an arbitrary or capricious manner. We hold, therefore, that the circuit court did not abuse its discretion in allowing McQueen and Kane to testify to Eltahir‘s character for peacefulness.
Id. at 194, 195-96, 175 A.3d at 871-72 (cleaned up). The Court of Special Appeals also
On February 8, 2018, Ford petitioned for a writ of certiorari, raising the following three issues:
- Under
Maryland Rule 5-404(a)(2)(C) , which provides, “In a homicide case, the prosecutor may offer evidence of the alleged victim‘s trait of peacefulness to rebut evidence that the victim was the first aggressor,” is the State allowed to present evidence of the alleged victim‘s trait of peacefulness, in its case-in-chief, to rebut opening statements by defense counsel that the defendant was not the aggressor and acted in self-defense? - What is the correct standard for determining whether a defendant‘s conduct is too ambiguous or equivocal to be admissible as evidence of “consciousness of guilt“?
- Where the State was permitted to elicit testimony that [Ford] went to the house of a witness after he stabbed the victim, that when the witness asked him to leave [Ford] “slammed” the door and “cursed” out the witness, that [Ford] also told the witness, inter alia, that he left the scene of the stabbing because he was “scared” of the “police” and that he did not think there was a self-defense law in Maryland, and where the [prosecutor] in closing argument contrasted [Ford]‘s reaction to being asked to leave, during which he “raged around,” with the “easy[]going” nature of the victim, inviting an “improper inference,” according to the Court of Special Appeals, did the [circuit] court err in admitting the witness‘s testimony regarding [Ford]‘s reaction to being asked to leave as evidence of “consciousness of
guilt“?1
On April 9, 2018, this Court granted the petition. See Ford v. State, 458 Md. 580, 183 A.3d 156 (2018).
DISCUSSION
I. Evidence of the Alleged Victim‘s Trait of Peacefulness
The Parties’ Contentions
Ford contends that the circuit court erred in allowing the State to present evidence of Eltahir‘s trait of peacefulness in its case-in-chief—through testimony by McQueen and Kane—to rebut statements made by Ford‘s counsel in opening statement that Ford was not the aggressor and acted in self-defense. Ford argues that, under the plain language of
Ford contends that the “default policy” underlying
The State responds that the circuit court properly permitted it to introduce evidence in its case-in-chief of Eltahir‘s trait of peacefulness because Ford‘s counsel stated during his opening statement that Eltahir was the aggressor and signaled that evidence would be introduced to prove as much. The State contends that the circuit court had the discretion “to vary the order of proof established by [Maryland] Rule 5-404(a)(2)(C)” to permit the State to offer rebuttal evidence in its case-in-chief where Ford‘s opening statement opened the door to such evidence. The State argues that Ford‘s counsel placed Eltahir‘s action and character at issue in his opening statement.
The State maintains that, pursuant to
Standard of Review
Maryland Rule 5-404(a)
(a) Character evidence. (1) Prohibited uses. Subject to subsections (a)(2) and (3) of this Rule, evidence of a person‘s character or character trait is not admissible to prove that the person acted in accordance with the character or trait on a particular occasion.
(2) Criminal and delinquency cases. Subsection (a)(2) of this Rule applies in a criminal case and in a delinquency case. For purposes of subsection (a)(2), “accused” means a defendant in a criminal case and an individual alleged to be delinquent in an action in juvenile court, and “crime” includes a delinquent act as defined by Code, Courts Article, § 3-8A-01.
(A) Character of accused. An accused may offer evidence of the accused‘s pertinent trait of character. If the evidence is admitted, the prosecution may offer evidence to rebut it.
(B) Character of victim. Subject to the limitations in Rule 5-412, an accused may offer evidence of an alleged crime victim‘s pertinent trait of character. If the evidence is admitted, the prosecutor may offer evidence to rebut it.
(C) Homicide case. In a homicide case, the prosecutor may offer evidence of the alleged victim‘s trait of peacefulness to rebut evidence that the victim wаs the first aggressor.
(3) Character of witness. Evidence of the character of a witness with
regard to credibility may be admitted under Rules 5-607, 5-608, and 5-609.
Thus, the general rule under
Analysis
Here, we hold that
We begin by examining the plain language of
Black‘s Law Dictionary defines “evidence,” in relevant part, as follows:
1. Something (including testimony, documents, and tangible objects) that tends to prove or disprove the existence of an alleged fact; anything presented to the senses and offered to prove the existence or nonexistence of a fact <the
bloody glove is the key piece of evidence for the prosecution>. 2. See fact in evidence under FACT. 3. The collective mass of things, esp[ecially] testimony and exhibits, presented before a tribunal in a given dispute <the evidence will show that the defendant breached the contract>.
Evidence, Black‘s Law Dictionary (10th ed. 2014). Similarly, Merriam-Webster defines “evidence,” in pertinent part, as:
something that furnishes proof: TESTIMONY
specifically: something legally submitted to a tribunal to ascertain the truth of a matter[.]
. . .
something that furnishes or tends to furnish proof
especially: something (as testimony, writings, or objects) presented at a judicial or administrative proceeding for the purpose of establishing the truth or falsity of an alleged matter of fact[.]
Evidence, Merriam-Webster (2018), https://www.merriam-webster.com/dictionary/evidence [https://perma.cc/F2UP-RTYN].
These definitions demonstrate that the term “evidence” means testimony, documents, objects, or exhibits that are offered during a judicial proceeding to prove or disprove the existence of an alleged fact; i.e., evidence is something that is submitted to a tribunal, in one of various forms, that tends to establish the truth or falsity of an alleged fact. Thus, utilizing the ordinary definition of “evidence,” it is clear that opening statements do not constitute evidence. Notably, the definitions of “evidence” do not identify an opening statement as an example of “evidence“; rather, the definitions identify testimony, writings/documents, objects, and exhibits as types of “evidence.” Put simply, the term “evidence“—although encompassing a wide variety of things, such as testimony,
Black‘s Law Dictionary defines “opening statement” as follows:
At the outset of a trial, an advocate‘s statement giving the fact-finder a preview of the case and of the evidence to be presented. [] Although the opening statement is not supposed to be argumentative, lawyers purposefully or not—often include some form of argument. The term is thus sometimes referred to as opening argument. — Also termed opening address.
Opening Statement, Black‘s Law Dictionary (10th ed. 2014). And, Merriam-Webster provides, in pertinent part, the following legal definition of “opening statement“: “a statement to the jury by trial counsel before the presentation of evidence that usually explains the nature of the case, the factual matters to be proven, and the evidence to be presented and that summarizes the arguments to be made[.]” Opening Statement, Merriam-Webster (2018), https://www.merriam-webster.com/legal/opening%20statement [https://perma.cc/CW3U-N6V8]. It is clear that an “opening statement” is a statement by counsel made at the beginning of a trial, before the presentation of evidence, in which counsel usually provides the fact-finder with an outline of the case, the evidence thаt is to be presented, and the arguments that are to be made. In other words, an opening statement is not itself evidence, as it is given prior to the presentation of evidence, and often includes a preview of the evidence that counsel expects to present during trial.
Black‘s Law Dictionary defines the term “rebut” as “[t]o refute, oppose, or counteract (something) by evidence, argument, or contrary proof <rebut the opponent‘s expert testimony> <rebut a presumption of negligence>.” Rebut, Black‘s Law Dictionary (10th ed. 2014). And, Black‘s Law Dictionary defines “rebuttal evidence” as “[e]vidence [that is] offered to disprove or contradict the evidence [that is] presented by an opposing party[,]” and states “[r]ebuttal evidence is introduced in the rebutting party‘s answering case; it is not adduced, e.g., through cross-examination[,] during the case-in-chief of the party [that is] to be rebutted.” Rebuttal Evidence, Black‘s Law Dictionary (10th ed. 2014). “Rebuttal evidence” is also defined as “evidence that tends to refute or discredit an opponent‘s evidence[.]” Rebuttal Evidence, Merriam-Webster (2018), https://www.merriam-webster.com/dictionary/evidence [https://perma.cc/F2UP-RTYN]. These definitions demonstrate that the very concept of rebuttal evidence is to disprove or contradict evidence that was presented by the opposing party; i.e., there must first be evidence offered by one party before the other party may rebut it through rebuttal evidence.
Although the plain language of
(a) Character evidence generally. (1) In general. Evidence of a person‘s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: . . . (B) Character of victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused or by the prosecution to rebut the same,
In 2010, this Court adopted amendments to
As the current Rule exists, there are two separate boxes, one for the victim‘s character and one for the accused‘s character. It is up to the defendant to open up either one of those issues. If the defendant offers evidence of the victim‘s pertinent character traits, that opens the door to the prosecution to rebut that evidence, but only the evidence of the victim‘s pertinent character traits.
Minutes of the Standing Committee on Rules of Practice and Procedure, Apr. 16, 2010, at 30 (emphasis added). Stated otherwise, the defendant controls the introduction of character evidence by offering such evidence in the first instance; i.e., it is character evidence being offered by the defendant—not an assertion made during opening statement—that triggers or opens the door for the State to rebut that evidence under
Here, there was simply no evidence offered by Ford that Eltahir was the aggressor, thereby triggering the State‘s ability to offer evidence of Eltahir‘s trait of peacefulness under
Indeed, the State recognizes that opening statements are not evidence. The State contends, however, that Ford‘s counsel‘s remarks during opening statement nevertheless opened the door to the State being entitled to rebut those claims in its case-in-chief. We disagree. In support of its contention, the State relies on a variety of cases, none of which involved admission of rebuttal character evidence under
[E]ven if we agreed with the [defendant] that such acts are not admissible to prove motive, evidence that the [defendant] hit his wife, as well as evidence of more specific physical disputes, are admissible as rebuttal evidence. In this case, the [defendant]‘s attorney during opening statement reiterated the [defendant]‘s sworn statement to the police that the [defendant]‘s relationship with his wife was “great and getting better,” suggesting that it was improbable that the [defendant] murdered his wife. The State was entitled to rebut that evidence.
As an initial matter, our statement in Snyder that the defendant had essentially opened the door through his counsel‘s opening statement to evidence of his relationship with his wife as proof of motive was dicta and has no precedential value. Second, in Snyder, we did not address whether, let alone hold that, remarks during counsel‘s opening statement may open the door for introduction of rebuttal character evidence under
Evidence of other crimes, wrongs, or acts including delinquent acts . . . is not admissible to prove the character of a person in order to show action in conformity therewith. Such evidence, however, may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, or absence of mistake or accident.
Similarly, we are unpersuaded by the State‘s reliance on Hopkins v. State, 137 Md. App. 200, 207-08, 768 A.2d 89, 93-94 (2001), and Fullbright v. State, 168 Md. App. 168, 182-85, 895 A.2d 1088, 1096-97 (2006), cert. denied, 393 Md. 477, 903 A.2d 416 (2006), which involved admission of anticipatory rehabilitation evidence of a State‘s witness under
Likewise, we are unpersuaded by the State‘s reliance on Terry v. State, 332 Md. 329, 631 A.2d 424 (1993), Martin v. State, 364 Md. 692, 775 A.2d 385 (2001), and Johnson v. State, 408 Md. 204, 969 A.2d 262 (2009) for the contention that the State‘s case-in-chief may include rebuttal evidence to which the defense has opened the door through opening statement. These cases are inapposite, and do not involve
In Martin, 364 Md. at 708-09, 775 A.2d at 394-95, this Court concluded that a trial court erred in admitting evidence of the defendant‘s consultation with an attorney to rebut an assertion made by defense counsel in opening statement because the danger of unfair prejudice “substantially outweighed any probative value[.]” In so holding, we еxplained that “[t]he doctrine of curative admissibility permits otherwise irrelevant evidence to be admitted in response to an adverse ruling or action[,]” and noted that, although “comments made in opening statements are not evidence . . . , the general principles in allowing a party to ‘meet fire with fire’ are applicable.” Id. at 708, 775 A.2d at 394 (cleaned up). Nevertheless, we explained that “[t]his doctrine of expanded relevance has its limits . . as the remedy must be proportionate to the malady.” Id. at 708, 775 A.2d at 394 (cleaned up).
In Johnson, 408 Md. at 223-24, 969 A.2d at 273, this Court held that the trial court should have sustained the defendant‘s objection to the following question by the prosecutor: “And some people believe that most of the currency in general circulation is contaminated with drug residue and that therefore [a] canine will always alert to currency, even currency in a bank. Based on your test of currency drawn from a bank, was that a legitimate belief?” (Cleaned up). As one reason why this question was objectionable, we
[T]he question was unfairly prejudicial because it violated the rule against the introduction of “anticipatory rehabilitation” and/or “strawman rebuttal” evidence. Under this rule, unless the defendant‘s opening statement and/or cross-examination of a State‘s witness has “opened the door” to evidence that is relevant (and now admissible) for the purpose of either rehabilitation or rebuttal, the State is prohibited from introducing during its case-in-chief—and thereafter rebutting—such evidence in order to “bolster” that witness‘s testimony. Because this rule applies to expert testimony as well as to non-expert testimony, the [trial] court should have prohibited the State from bolstering [an officer]‘s testimony about the significance of the canine scan.
Id. at 226, 969 A.2d at 274-75 (cleaned up). Importantly, in Terry, Martin, and Johnson, this Court did not conclude that the doctrine of curative admissibility, or opening the door, applied generally to character evidence under
Nor are we convinced that
Having established that the circuit court erred in concluding that Ford‘s counsel had “opened the door” for the State to present evidence of Eltahir‘s trait of peacefulness under
(Cleaned up). “The harmless error standard is highly favorable to the defendant, and the burden is on the State to show that the error was harmless beyond a reasonable doubt and did not influence the outcome of the case.” Perez, 420 Md. at 66, 21 A.3d at 1054 (cleaned up). In this case, we conclude that the circuit court‘s error was harmless beyond a reasonable doubt.Under the doctrine of harmless error, an appellate court does not reverse a conviction based on a trial court‘s error or abuse of discretion where the appellate court is satisfied beyond a reasonable doubt that the trial court‘s error or abuse of discretion did not influence the verdict to the defendant‘s detriment. Hall v. State, 437 Md. 534, 540-41, 87 A.3d 1287, 1291 (2014) (quoting Perez v. State, 420 Md. 57, 66, 21 A.3d 1048, 1054 (2011) (brackets omitted); see also Dorsey v. State, 276 Md. 638, 659, 350 A.2d 665, 678 (1976).
Here, there was a plethora of evidence adduced at trial demonstrating that Ford did not act in self-defense in fatally stabbing Eltahir, such that we are satisfied beyond a reasonable doubt that the circuit court‘s error was of no consequence with respect to the jury‘s verdict. Eyewitness testimony confirmed that Ford did not act in self-defense, and, even if believed, Ford‘s account does not establish the defense of self-defense. McQueen testified that Ford began an unprovoked verbal altercation with Eltahir, and that, after words were exchanged between Ford and Eltahir, Ford stood up and “got in [Eltahir]‘s face.” Ford initiated physical contact by hitting Eltahir, and Ford eventually hit Eltahir in the chest. McQueen saw Ford begin to start “hitting” Eltahir again, and then she noticed blood on Eltahir. Ford passed by McQueen, carrying a knife in his hand, with blood running down his arm. McQueen identified Ford from a photographic array as the person who stabbed Eltahir, and testified that there was no doubt in her mind that Ford stabbed Eltahir. On cross-examination, McQueen testified that she “did see” Ford stab Eltahir. And, on redirect-examination, McQueen testified that there was no blood on Eltahir‘s shirt when he arrived at the park bench, and that Ford was the only person to make physical contact with Eltahir‘s chest.
Kane testified that Ford instigated a verbal altercation with Eltahir, and he later saw
Detective Ballard testified that, after Ford was arrested and placed in the detective‘s unmarked vehicle, and without being told of the reason for his arrest, Ford made various unsolicited statements, including that the people in Brown‘s house “had nothing to do with this[,]” “that there was nothing in there,” and “that he hid it in the county.” Ford also asked Detective Ballard how Eltahir was doing. Additionally, parts of Detective Harding‘s and Detective McNemar‘s interrogation of Ford were played for the jury, and the circuit court admitted the recording and transcript into evidence. During the interrogation, Ford told detectives that he saw women walk by and said to Eltahir: “Don‘t – you getting all offensive but you sleeping with them?” Ford said that Eltahir then “jumped up” and “clocked” him, and that he said “[y]ou done messed up,” and then he “cut” Eltahir. Ford told detectives that he “remember[ed] seeing the blood on [Eltahir] and him saying, ‘You cut me. You
Detective Harding testified that she arranged for officers to go to Ford‘s mother‘s house to recover the knife that he had hidden. Dembia, the forensic chemist, took three different samples from the knife, and testified that a major component of the sample from the knife‘s handle was consistent with Ford‘s known DNA profile, and that the samples from the stain on the blade and the areas around the blade matched Eltahir‘s known DNA profile and excluded Ford as the source of the DNA.
Overall, the evidence adduced by the State included the following: two eyewitnesses—McQueen and Kane—who, among other things, saw the altercation between Ford and Eltahir, testified that Ford instigated the altercation, testified that Ford was the only person to have physical contact with Eltahir, and identified Ford from photographic arrays as the person who stabbed Eltahir; Brown‘s testimony that Ford told her that he had stabbed a man who had hit him and then hidden the knife on his mother‘s property; Detective Ballard‘s testimony that Ford had made unsolicited comments after being arrested, including a statement that he had “hid it” and a question about how Eltahir was doing; and, Dembia‘s testimony that a major contributor of a sample from the handle of knife that was recovered from Ford‘s mother‘s property matched Ford‘s DNA profile, and that samples from the blade matched Eltahir‘s DNA profile. Perhaps most
II. Evidence of Consciousness of Guilt
The Parties’ Contentions
Ford cоntends that the circuit court erred in permitting Brown to testify about his reaction to being asked to leave her home as evidence of consciousness of guilt. Ford argues that evidence that he cursed at Brown and slammed a door is not evidence of consciousness of guilt and, thus, is inadmissible. Ford asserts that such evidence was “too ambiguous and equivocal to” constitute evidence of consciousness of guilt. Ford maintains
Ford argues that, even if his reaction were relevant, its probative value was outweighed by the danger of unfair prejudice and therefore inadmissible. Ford asserts that the danger of unfair prejudice was “obvious“—namely, that the jury would infer from his reaction to Brown that he was hot-tempered or aggressive and that he stabbed Eltahir in conformity with his temperament. Ford maintains that, to the extent that evidence of his reaction reflected a consciousness of guilt, such evidence was cumulative and outweighed by unfair prejudice.
The State responds that the circuit court properly permitted, as evidence of consciousness of guilt, Brown‘s testimony about Ford‘s reaction to being told that he had to leave Brown‘s home. The State contends that the testimony was relevant and that the danger of unfair prejudice did not substantially outweigh its probative value. The State argues that Brown‘s testimony was relevant to Ford‘s guilty state of mind, and that Ford‘s post-crime conduct satisfied four inferences that are necessary for evidence to be admissible as evidence of consciousness of guilt. The State asserts that, if there were an innocent explanation for his conduct—for example, he slammed thе door and cursed because Brown‘s telling him to leave triggered hurt from the end of the relationship or because it was a result of side effects of medication—Ford could have argued those
The State contends that the circuit court did not abuse its discretion in determining that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. The State asserts that Brown‘s testimony was both relevant and not reasonably likely to produce such an emotional response that the danger of unfair prejudice would substantially outweigh the probative value of the evidence.
Standard of Review
An appellate court reviews without deference a trial court‘s conclusion as to whether evidence is relevant. See Santiago v. State, 458 Md. 140, 161, 181 A.3d 796, 808 (2018). An appellate court reviews for abuse of discretion a trial court‘s determination as to whether evidence is inadmissible under
Relevant Law
“[I]f relevant, circumstantial evidence regarding a defendant‘s conduct may be admissible under M[aryland] Rule 5-403, not as conclusive evidence of guilt, but as a circumstance tending to show a consciousness of guilt.” Decker v. State, 408 Md. 631, 640, 971 A.2d 268, 274 (2009) (cleaned up). In Decker, id. at 640, 971 A.2d at 274, we explained that evidence of consciousness of guilt “can take various forms, including flight after a crime, escape from confinement, use of a false name, and destruction or concealment of evidence.” (Cleaned up). In Decker, id. at 641, 971 A.2d at 274, we explained that “evidence need not be contemporaneous with the crime to be evidence of the defendant‘s consciousness of guilt.” (Cleaned up). Additionally, in Decker, id. at 641, 971 A.2d at 274, we stated that any evidence contradicting an inference of guilt that is derived from such flight “does not render the evidence of flight inadmissible, but is merely to be considered by the jury in weighing the effect of such flight.” (Cleaned up).
In Decker, id. at 641, 971 A.2d at 274, we elaborated on evidence of consciousness of guilt, stating:
Consciousness of guilt evidence is considered relevant to the question of guilt because the particular behavior provides clues to the person‘s state of mind, and state of mind evidence is relevant because the commission of a crime can be expected to leave some mental traces on the criminal. Thus, by application of the accepted test in Maryland for ascertaining relevancy, guilty behavior should be admissible to prove guilt if we can say that the fact that the accused behaved in a particular way renders more probable the fact of his or her guilt.
As with other forms of circumstantial evidence, however, the probative value of guilty behavior depends upon the degree of confidence with which certain inferences may be drawn. There must be an evidentiary basis, either direct or circumstantial, to link the defendant‘s conduct to the consciousness of guilt inference.
(Cleaned up). To determine whether evidence of post-crime conduct may be admissible as consciousness of guilt where flight is concerned, this Court established the following test:
Under that test, the probative value of the evidence depends upon the degree of confidence with which four inferences can be drawn: (1) from the defendant‘s behaviоr to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged.
Id. at 642, 971 A.2d at 275 (cleaned up).
As one example, in Thomas v. State, 372 Md. 342, 356-58, 812 A.2d 1050, 1058-59 (2002) (”Thomas I“), this Court held that evidence of the defendant‘s refusal to submit to a blood test over three years after the victim was killed, absent evidence that he was told the test was related to the victim‘s death i.e., that the defendant was aware that law enforcement wished to test his blood in connection with the murder investigation was not admissible as evidence of consciousness of guilt. In so holding, we observed that the third inference “from consciousness of guilt to consciousness of guilt concerning the crime charged” was not satisfied. Id. at 354, 812 A.2d at 1057. We explained: “Knowledge that the person is suspected of the charged crime is important because the value of the conduct lies in the culprit‘s knowledge that he or she has committed the charged offense and in his or her fear of apprehension.” Id. at 354, 812 A.2d at 1057. We further noted that, in some instances, “a defendant‘s conduct [had been held to be] too ambiguous and
In Thomas I, id. at 356, 812 A.2d at 1058, we explained that the following four inferences would need to be drawn:
(1) from his resistance to the blood test, a desire to conceal evidence; (2) from a desire to conceal evidence, a consciousness of guilt; (3) from a consciousness of guilt, a consciousness of guilt of the murder of [the victim]; and (4) from a consciousness of guilt of the murder of [the victim], actual guilt of the murder.
We determined that there was no evidence from which the jury could have drawn the third inference because “there was absolutely no evidence from which the jury could conclude that [the defendant] knew the blood sample was in any way connected to the [victim‘s] murder.” Id. at 357, 812 A.2d at 1059. Accordingly, absent evidence from which the jury could draw the third inference, evidence of the defendant‘s refusal to submit to the blood test “lack[ed] probative value and was inadmissible.” Id. at 358, 812 A.2d at 1059.
In Thomas v. State, 397 Md. 557, 561, 919 A.2d 49, 52 (2007) (”Thomas II“), this Court “revisit[ed] the question of whether [the defendant]‘s refusal to provide a blood sample demanded by police pursuant to a search warrant was admissible in evidence as consciousness of guilt.” In Thomas II, id. at 577, 919 A.2d at 61, we held that there was a sufficient basis for the trial court to admit evidence of the defendant‘s refusal as consciousness of guilt. We explained that, on retrial in the defendant‘s case, “the State offered evidence sufficient to satisfy the third inference necessary to demonstrate
In so holding, we emphasized that, “[t]o be relevant, it is not necessary that evidence of this nature conclusively establish guilt. The proper inquiry is whether the evidence could support an inference that the defendant‘s conduct demonstrates a consciousness of guilt. If so, the evidence is relevant and generally admissible.” Id. at 577, 919 A.2d at 61 (cleaned up) (emphasis in original). We also rejected the defendant‘s contention that “his reaction [, i.e., refusing to submit to the blood test,] could have been due to religious objections or fear of needles, the sight of blood, pain, or possible infection“—i.e., that there existed an innocent explanation for his refusal. Id. at 577, 919 A.2d at 61. We stated that, “[s]o long as the proper foundation is laid, consciousness of guilt evidence may be relevant and admissible.” Id. at 578, 919 A.2d at 62. As such, “[s]imply because there is a possibility that there exists some innocent, or alternate, explanation for the conduct does not mean that the proffered evidence is per se inadmissible.” Id. at 578, 919 A.2d at 62. We further stated that, if there was innocent explanation for the defendant‘s conduct, “it was incumbent upon him to generate that issue[,]” but he failed to offer such an alternative theory at trial. Id. at 578, 919 A.2d at 62. We concluded that the trial court properly admitted evidence of the defendant‘s refusal to submit to the blood test as evidence of consciousness of guilt because “any possible prejudicial effect of [the defendant]‘s struggle
Analysis
Here, we hold that the circuit court properly permitted Brown to testify about Ford‘s reaction to being told that he had to leave her home—that he “cursed [her] out, and he slammed back the front door and left“—as evidence of consciousness of guilt. The circuit court did not err in determining that this evidence was relevant, and that it did not abuse its discretion in concluding that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice or considerations of cumulative evidence.4
Evidence of Ford‘s reaction to being told by Brown that he had to leave her home—namely, that he “cursed” at Brown and then “slammed back the front door and left[,]” i.e., his post-crime conduct—was relevant to show Ford‘s state of mind, in that he was staying at Brown‘s home to hide from law enforcement and did not want to leave because he wanted to continue hiding out and elude capture. Ford‘s reaction to being told that he could not stay tended to show that he wanted to continue to hide from law enforcement because he was guilty. Indeed, the fact that Ford behaved in this particular way rendered more probable the fact that he was guilty. See Decker, 408 Md. at 641, 971 A.2d at 274 (cleaned
All four inferences that we have established for the admission of evidence of post-crime conduct as consciousness of guilt were satisfied in this case. See id. at 642, 971 A.2d at 275. Specifically, from evidence of Ford‘s reaction to being told that he could not stay at Brown‘s home, the jury could reasonably have drawn the following inferences: (1) from Ford‘s reaction to a desire to hide from law enforcement and elude capture; (2) from hiding to consciousness of guilt; (3) from consciousness of guilt to consciousness concerning the crime charged, i.e., murder of Eltahir; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged. Significantly, “[t]o be relevant, it is not necessary that evidence of this nature conclusively establish guilt. The proper inquiry is whether the evidence could support an inference that the defendant‘s conduct demonstrates a consciousness of guilt. If so, the evidence is relevant and generally admissible.” Thomas II, 397 Md. at 577, 919 A.2d at 61 (cleaned up) (emphasis in original). Here, the evidence of Ford‘s reaction could support an inference that his conduct demonstrated consciousness of guilt. Thus, the circuit court did not err in concluding that evidence of Ford‘s reaction was, indeed, relevant to show consciousness of guilt.
Ford contends that evidence of his reaction failed to satisfy the first inference because there is an “alternative explanation” for his behavior that “is not a matter of speculation“—namely, that he “had a character trait for hot-temperedness or
In any event, the circumstance that there is the possibility of an innocent explanation for Ford‘s reaction is insufficient to render Brown‘s testimony inadmissible. See id. at 578, 919 A.2d at 62 (“Simply because there is a possibility that there exists some innocent, or alternate, explanation for the conduct does not mean that the proffered evidence is per se inadmissible.“). Rather, “[s]o long as the proper foundation is laid, consciousness of guilt evidence may be relevant and admissible.” Id. at 578, 919 A.2d at 62. Indeed, the question is simply whether such “evidence could support an inference that the defendant‘s conduct demonstrates a consciousness of guilt[, and, i]f so, the evidence is relevant and generally admissible.” Id. at 577, 919 A.2d at 61 (cleaned up) (emphasis in original). In this case, as explained above, the evidence of Ford‘s reaction to being told that he could not stay at Brown‘s home could support an inference that his conduct demonstrated a consciousness
We are unpersuaded by Ford‘s reliance on Thompson v. State, 393 Md. 291, 901 A.2d 208 (2006) and his contention that, in this case, “the proper inquiry [was] whether the evidence also reasonably supports a highly prejudicial inference that [requires] treating the evidence in a manner that would otherwise render the evidence inadmissible[,]” and, if so, then such “evidence is too ambiguous and equivocal to [serve as] evidence of consciousness of guilt evidence.” (Cleaned up). In Thompson, id. at 294, 901 A.2d at 209, this Court held that a trial court abused its discretion in giving a jury instruction on flight. In that case, a detective investigating a shooting saw the defendant, who fit the description of the shooter, on a bicycle; the detective ran toward the defendant, identified himself as an officer, and yelled for him to stop; the defendant saw the detective, but pedaled away from him; and, shortly thereafter, the defendant was apprehended, and officers recovered a large amount of cocaine on the defendant. See id. at 294, 901 A.2d at 210. Before trial, the trial court ruled that the cocaine, the results of a chemical analysis, and the defendant‘s
During a retrial on certain charges, a tape recording of the defendant‘s statements to officers that he fled was played for the jury, and a transcript of the statement was admitted, without objection. See id. at 296, 901 A.2d at 211. And, the detective from whom the defendant had fled testified that the defendant saw him, but pedaled away when he approached him. See id. at 297, 901 A.2d at 211. This Court noted that, although the defendant objected to the form of the questions, he did not object to the admission of evidence concerning his flight from police. See id. at 298, 901 A.2d at 212. At the conclusion of the trial, over the defendant‘s objection, the trial court gave a jury instruction on flight. See id. at 300, 901 A.2d at 213.
This Court held that the flight instruction was improper, explaining:
The gravamen of the issue is whether [the defendant] fled in an attempt to avoid apprehension for the crimes for which he was оn trial. In the present case, the jury was not presented with evidence of what may have been an alternative and at least a cogent motive for [the defendant]‘s flight, specifically that drugs were found on his person. During his interview with police, [the defendant] asserted that he ran from them because he had drugs in his possession, which, according to the State, amounted to eighty-six vials of crack cocaine at the time of his arrest. He was in essence arrested in flagrante delicto with respect to the crime of possession of controlled dangerous substances. We find that this fact, which was known to all parties involved although not revealed to the jury, undermines the confidence by which the inference could be drawn that [the defendant]‘s flight was motivated by a consciousness of guilt with respect to the crimes for which he was on trial in the present case; it provides a foundation for the alternate, and equally reasonable, inference that [the defendant] fled due to the cocaine in his possession, an action a person in his position may have taken irrespective of whether he also shot and attempted to rob [one of the victims]. [The
defendant] thus was placed in a difficult situation where he must either not object to the highly prejudicial evidence concerning his possession of a significant amount of cocaine being introduced to the jury to explain his flight (or perhaps forced to make a Hobson‘s choice to introduce such evidence himself), or decline to explain his flight and risk that the jury would not infer an alternative explanation for his flight.
Id. at 313-14, 901 A.2d at 221 (footnotes omitted). We further explained:
Where the defendant possesses an innocent explanation that does not risk prejudicing the jury against him, it would be expected that the defendant would present his purported reasons for his flight to the jury. It is error, however, for the trial [court] to give such an instruction in a case like the case sub judice where the defendant would be prejudiced by the revelation of the “guilty” explanation for his flight.
Thompson is distinguishable from this case in several important respects, and is ultimately of no assistance to Ford with respect to evidence of his reaction being admitted as consciousness of guilt. Significantly, the issue in Thompson was the propriety of the trial court‘s giving of a jury instruction on flight. In this case, although the circuit court gave a jury instruction on flight that was similar to the instruction given in Thompson, id. at 300, 901 A.2d at 213, Ford did not object, nor has he raised any issue as to the propriety of the flight instruction.5 Indeed, the issue here concerns the admissibility of Brown‘s testimony concerning how Ford reacted when she told him he could not stay at her home as evidence of consciousness of guilt; a similar issue was not raised in Thompson. Indeed, in Thompson, evidence of the defendant‘s flight was admitted during the trial without objection and the propriety of the instruction on flight was at issue. In Thompson, id. at 313, 901 A.2d at 221, the alternate explanation for the defendant‘s flight was that he had eighty-six vials of crack cocaine on his person at the time of his arrest—evidence of a crime that would have been highly prejudicial to the defendant. By contrast, in this case, there were any number of alternative or innocent reasons that Ford could have presented to the jury to explain his reaction to being told to leave his ex-girlfriend‘s home. In short, Ford did not face the same Hobson‘s choice that the defendant in Thompson did. And, although flight is not at issue in this case, Ford‘s behavior satisfied the test set forth in Decker for the admission of post-crime conduct as evidence of consciousness of guilt.6
Here, the evidence of Ford‘s reaction was highly probative. The record reflects that, shortly after stabbing Eltahir, i.e., the same evening, Ford showed up unannounced at Brown‘s home. Ford asked Brown whether he could stay at her home for a while because he had gotten into a fight with a friend, the friend had hit him, “and he [had] stabbed him.” Ford told Brown more about the incident, and ultimately, Brown permitted Ford to stay the night. The next morning, however, Brown told Ford that he could not stay at her home and “that he had to go.” In other words, the morning following the stabbing, Brown sought to have Ford leave her home, and he reacted by cursing at her, “slamm[ing] back the front door[,]” and leaving. Significantly, when Brown testified about Ford‘s reaction to being told to leave, she did not allege that Ford hit or threatened her or engaged in any violent behavior; rather, as Brown testified, Ford was “upset[.]” Although Ford‘s reaction demonstrated that he was upset about being asked to leave his hiding place, it did not rise
We are unpersuaded by Ford‘s contention that there was “danger of the jury taking [his] reaction to Brown as evidence of the character trait of hot-temperedness or aggressiveness and his stabbing Eltahir in conformity therewith.” As explained above, there were innocent explanations that Ford could have offered to explain his reaction to being told to leave Brown‘s home, but he did not do so. And, in any event, Ford‘s reaction did not demonstrate that he was violent or assaultive, only that he was upset about being asked to leave his hiding place.7
Moreover, even if evidence of Ford‘s reaction to being told he had to leave Brown‘s home was prejudicial, that does not mean that it was “unfairly” prejudicial such that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. Indeed, in Odum v. State, 412 Md. 593, 615, 989 A.2d 232, 245 (2010), we explained that “the fact that evidence prejudices one party or the other, in the sense that it hurts his or her case, is not the undesirable prejudice referred to in [Maryland] Rule 5-403.”
We similarly reject Ford‘s argument that the circuit court abused its discretion because there was “other putative ‘consciousness of guilt’ evidence,” and, as such, evidence of his reaction was “cumulative” and “completely outweighed” by the danger of unfair prejudice. The mere fact that evidence may be cumulative does not mean that the evidence is unfairly prejudicial. Indeed,
CONCLUSION
In sum, by its plain language,
We hold that the circuit court properly permitted Brown to testify about Ford‘s reaction to being told that he had to leave her home as evidence of consciousness of guilt, as the evidence was relevant, and it was not an abuse of discretion to determine that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice or considerations of cumulative evidence.
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. PETITIONER TO PAY COSTS.
Notes
(Paragraph break omitted). Like the word “attacked” inThe following statements previously made by a witness who testifies at the trial . . . and who is subject to cross-examination concerning the statement are not excluded by the hearsay rule: . . . A statement that is consistent with the declarant‘s testimony, if the statement is offered to rebut an express or implied charge against the declarant of fabrication, or improper influence or motive.