Lopez v. StateLopez v. State
Krauser, C.J., Arthur, James A. Kenney, III (Senior Judge, Specially Assigned), JJ.
Krauser, C.J.
Curtis Maurice Lopez, appellant, entered Alford pleas1 to the robbery and first-degree murder of Jane McQuain and the subsequent kidnapping and first-degree murder of her eleven-year-old son, William McQuain, in the Circuit Court for Montgomery County. He was thereafter
sentenced, by that court, to multiple terms of imprisonment, the longest of which were two consecutive terms of life imprisonment, without the possibility of parole.2 Subsequently, however, this Court granted Lopez‘s application for leave to appeal. That application presented the two issues that are now before us, namely:
- Whether the trial court erred in denying Lopez‘s request to direct the State “to disclose and state with particularity” what it intended to introduce at the sentencing hearing pursuant to
Maryland Rule 4-342(d) , and - Whether the sentencing court erred in permitting a “music/video slide show” depicting the lives of the victims to be played at the sentencing hearing.
We hold that, although the State‘s presentencing notice to Lopez fell short of the requirement of
We now turn to the four proceedings that are relevant to Lopez‘s two claims: the plea hearing, the two presentencing disclosure hearings, and the sentencing hearing.
Plea Hearing
According to the undisputed statement of facts, proffered by the State, at Lopez‘s plea hearing, Lopez married Jane
McQuain, while he was imprisoned in
In September 2011, upon learning that Ms. McQuain had recently inherited a significant amount of money from an uncle and had made several expensive purchases with that inheritance, Lopez contacted Ms. McQuain and informed her of his intention to visit her and William at their Maryland home. After arriving in Maryland, Lopez stayed with Ms. McQuain and her son, at McQuain‘s residence, from September 16th through September 30th of 2011.
On the morning of the last day of his visit, September 30th, Jane McQuain dropped William off at a friend‘s house for an overnight stay, intending to pick him up the next day. That evening, however, as Ms. McQuain lay in her bed, Lopez struck her in the head with a thirty-pound dumbbell and stabbed her twice in the back with a butcher knife, inflicting fatal wounds. The next morning, Lopez used Ms. McQuain‘s bank card to withdraw money from her bank account and then drove her car to where William was staying. After arriving there, he used Jane McQuain‘s cell phone to text the eleven-year-old William to leave his friend‘s house and come outside. When William did so, Lopez told him to climb “into the car.” Then, with William in the car, Lopez drove to Ms, McQuain‘s storage unit. From that storage unit, Lopez retrieved, among other things, a metal baseball bat, which he used, later that day, to beat William to death, shattering his skull into 36 pieces. Lopez thereafter drove Ms. McQuain‘s car to North Carolina, where he was arrested.
Presentencing Disclosure Hearings
Before sentencing, the State moved to compel disclosure of an expert witness, whom the defense intended to call at Lopez‘s sentencing hearing. In his response to that motion, Lopez‘s counsel accused the State of failing to provide him
with “any information that the State expect[ed] to present to the court for consideration in sentencing,” as required by
During the ensuing hearing on the State‘s motion to compel disclosure of an expert witness (which was granted by the circuit court), Lopez‘s counsel reiterated his complaint and demand for a remedial order. The prosecutor responded that the State had given adequate notice, under
In the written response it subsequently filed, the State insisted that it had fully complied with
At the hearing on his presentencing disclosure request that followed, defense counsel asserted that
We are requesting that we be ... given some idea of what the State intends to rely on, because otherwise it‘s
very difficult to marshal our efforts in a way that we can provide effective assistance of counsel, that we can prepare to rebut what the State puts on at sentencing in a case where we have gotten this volume of discovery, discovery that reaches back over 30 years. ...
I would estimate that there are about 2,000 pages from a 1987 Harrisburg, Pennsylvania attempted murder case, including medical records of the victim in that case, hundreds of pages of medical records, motions that were filed, statements of witness.3 There were hundreds of pages from 14 years in DOC in Pennsylvania, including—I‘ve of course referred to the mental health record—but movement from institution to institution, parole files, records of, or parole being requested, parole being, when it was granted but before on attempts when it was denied. We have ... at least 100 pages related to child support litigation. We have Mr. Lopez‘s employment records in North Carolina. ... I would say that the majority of what we‘ve been given was not ... discovery of actual facts that would be used to prove up this case at trial ....
And Mr. Lopez is a 46-year-old man who ... was incarcerated for a period of 14 years. He was then on parole, which he successfully completed. He was on parole from October of 2000 until ... October of 2009 when he successfully completed it. There are records related to that. And I know [the prosecutor] is going to get up and say, “Well, what it is that the State intends to introduce at you‘ve had all that ... for a long time,” and that‘s true, but what‘s the purpose of this rule is it‘s not narrow down sentencing?....
We are concerned that under the Sixth Amendment we won‘t be able to give effective assistance if we don‘t know what we need to be prepared to rebut out of all of this universe of information.
(Emphasis added.)
In reply, the prosecutor characterized the defense motion as “novel,” one that he had “never seen ... before[,]” and that,
contrary to defense counsel‘s claim that the State had failed to provide enough discovery, “we‘re here because the State has provided too much discovery.” In the State‘s view,
[t]he rule says ... all materials must be given in advance for sentencing. That has been done. That‘s no dispute. We‘re going to use all materials that we have provided to them. That includes pictures of the crime scene from where he killed his wife, pictures from the woods where he killed an 11-year-old boy with a baseball bat. We‘re going to show pictures, like we did at the plea ... of where he hid the baseball bat and where he went in North Carolina and covered up materials. We‘ll talk about DNA. We‘re going
to talk about everything. We‘re going to talk about his previous conviction, where he left somebody for dead on the side of the road. We‘re going to talk about when he put something over a [prison] guard‘s head, trying tо kill him. We‘re going to talk about everything. So I think they really should be prepared for everything that they‘ve been provided, and I think a lot of it is redundant.
The prosecutor further stated that, with the exception of the presentence investigation report and victim impact statements, the defense had everything the State was required to produce. Then, following the prosecutor‘s assurance to the court that “only a handful of people [would be] speaking on behalf of the victim impact,” the circuit court denied defense counsel the relief he sought.
Sentencing Hearing
At the outset of the sentencing hearing, defense counsel moved to exclude a victim impact video, which the State intended to present, consisting of a slide show of 115 still photographs, showing the victims, Jane and William McQuain, throughout their lives, either alone, together, or with a family member or friend. The State planned to show this victim impact video during the testimony of Bill McQuain, the brother of Jane McQuain and the uncle of William, who had been designated as the “Victims’ Representative.” The video mon-
tage, in question, was accompanied by instrumental music, a popular song, and a bell, ringing as it began and then, once again, as it ended. The only words that appeared on the screen, during that video, were the video‘s title, “The Story of Jane and William,” which could only be observed at the beginning of the video montage, and then, a “credits list” of individuals who had provided photographs for the montage, at its conclusion.
Asserting that this type of victim impact presentation “is done all the time[,]” the prosecutor, as well as counsel for the Victims’ Representative, claimed that the video was “not inflammatory in any way” and was therefore permissible, as victim impact material, under Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). The trial court ultimately denied the defense‘s motion to exclude the victim video montage, stating:
I have discretion to allow whatever I like or whatever is appropriate in this kind of sentencing proceeding, I‘m told that it is just pictures, that it is six minutes. This is their one, the victim‘s [sic] family‘s one opportunity to show me, or anyone else, the extent of the impact upon them. And so I know you don‘t like it, but this is what they would like to do, and in some respects, it would be cathartic to, for the last time, be able to fully discuss their sister and their nephew. So I‘m going to allow the video to be played.
At the end of testimony of the Victims’ Representative, the State played the victim impact video. When it concluded, defense counsel asked the sentencing judge to recuse herself, claiming that the video was “unduly prejudicial,” “just appeal[ed] to emotions,” and was “over the top.” The court denied that request, asserting, “You‘re entitled to show pictures, they‘re pictures.” Then, in imposing sentence, the circuit court stated:
There‘s not much more I can say other than the eloquent words we have heard from all of the victims here today and in their victim impact statements ....
[T]he monstrous nature of this crime cannot convert this case into concurrent time or any prospect of parole. You stabbed Jane McQuain and crushed her skull with a 30-pound dumbbell. You
took William from a sleepover, got a baseball bat out, took him into the woods, and crushed his skull into many pieces. And this was a person who called you “dad.” Your difficult childhood, you had a crime ridden neighborhood, an abusive family, abаndonment issues, a history of mental illness in your family, a rotten prison experience which you probably deserved.4 The riot in the prison may help explain to somehow any human being could so diabolically and methodically plan to brutally murder the two people on earth who loved you.
As for second chances, you have had at least one already. Divine providence stepped in after you stabbed that acquaintance 18 times for his vehicle, when strangers stepped in and saved that man on the highway.
You were released in 2000 and went on to commit a more heinous crime. I will not cause society to take another chance. ...
Following sentencing, this Court granted Lopez leave to appeal both the denial of his request that the State be ordered
to provide some indication, to the defense, of what information, from a substantial pool of documents, it intended to adduce at sentencing, as well as the State‘s presentation, over objection, of the victim impact video at sentencing.
I.
Motion to Compel Compliance with Rule 4-342(d)
[s]ufficiently in advance of sentencing to afford the defеndant a reasonable opportunity to investigate, the State‘s Attorney shall disclose to the defendant or counsel any information that the State expects to present to the court for consideration in sentencing. If the court finds that the information was not timely provided, the court shall postpone sentencing.
“The purpose of
The State counters that “[t]he trial court properly exercised its broad discretion in denying Lopez‘s request” because “[t]he plain language of
argument improperly equates the State‘s disclosure obligation under this rule with its duty to provide a bill of particulars under
We believe, however, the State‘s presentencing disclosure fell short of what is required under
A.
In Dove v. State, 415 Md. 727, 4 A.3d 976, the Court of Appeals declared that
The Court of Appeals found, in Dove, that the State had violated
fied fingerprint expert, at sentencing.5 Id. at 733-35, 740-41, 746, 4 A.3d 976. The State had belatedly “presented the fingerprint card in question as substantive evidence of the defendant‘s identity,” observed the Court, to confirm that he had been previously convicted of possession with intent to distribute heroin and thereby warranted an enhanced sentence. Id. at 740-41, 4 A.3d 976. But the State should have provided Dove with the fingerprint cаrd before sentencing, declared the
The Dove Court then turned to the question whether the harmless error doctrine is applicable to a violation of
was not harmless. Id. at 745-46, 749-50, 4 A.3d 976. Consequently, the Court vacated Dove‘s sentence and ordered a new sentencing hearing. Id. at 751-52, 4 A.3d 976.
Similarly, in Green v. State, supra, 127 Md.App. 758, 736 A.2d 450, this Court held that the State had violated
To be sure,
But, instead of providing, in its
mentation and then declines to specify what data, from that sea of material, it intends to adduce at sentencing. Certainly, it is not enough for the prosecutor to announce that the State intends to cull its sentencing presentation from a vast amount of previously disclosed discovery material. Rather, it must identify,
Although the State violated
B.
We turn now to address whether the circuit court‘s error, in failing to require the State to comply with
Nothing in the record before us indicates that Lopez suffered any prejudice as a rеsult of the State‘s violation of
“the crime scene[s]” and “where he hid the baseball bat and where he went in North Carolina and covered up materials.” Moreover, we note that the PSI report and victim impact statements, which the State repeatedly invoked at the sentencing hearing, were provided to defense counsel in sufficient time to prepare for that hearing.
Furthermore, notwithstanding defense counsel‘s vigorous presentence complaints that she could not tell, from the material she had been given, what the State planned to present at sentencing, defense counsel did not raise those objections at the sentencing hearing. In fact, she did not object at any point or to any part of the State‘s sentencing presentation on the ground that it contained information for which she was unprepared.
That silence belies Lopez‘s subsequent complaint, in both his application for leave to appeal and his appellate brief, that, “[o]n the day of sentencing, the State introduced wide-ranging evidence, much of which the Defense was hamstrung to rebut, due to lack of adequate notice.” Specifically, in his brief, he asserts that “the State deprived the defense of the ability to intelligently utilize its limited investigative resources.” Then, expounding upon that point, he states:
What information would the State discuss in relation to Mr. Lopez’ prior record, which dated back to his teenage years? What of his prison record and his long, complicated history with Ms. McQuain and her son? How much time should be spent investigating the reliability of the evidence of the present offenses, for example the State‘s allegation that Mr. Lopez was motivated by a desire to make money and to please a girlfriend? To be sure, all of this information was material to sentencing. The problem faced by defense сounsel was
narrowing down the field—finding the proverbial needle in the 10,000 pages of discovery that had already been turned over.
But, after making his “needle in 10,000 pages of discovery” complaint during the presentencing discovery proceedings, neither he nor his counsel ever mentioned or otherwise alluded to that objection at the sentencing hearing that followed.
Indeed, if, at any point during the sentencing hearing, Lopez felt that the State‘s failure to provide more particularized presentencing information was crippling his response to the State‘s presentation, then he or his counsel should have informed the sentencing court of that problem. The court could have then considered his complaint and, if warranted, could have provided an appropriate remedy, such as postponement of the proceedings or exclusion of material or information at issue. In fact, Lopez‘s failure to object, at sentencing, to any information presented by the State presumably left the sentencing court under the impression that the State‘s flawed notice had ultimately proven not to be a problem for the defense.
Moreover, we reached a similar conclusion, under a comparable set of circumstances, in Outmezguine v. State, 97 Md.App. 151, 627 A.2d 541 (1993), aff‘d on other grounds, 335 Md. 20, 641 A.2d 870 (1994). There, we found that the improper admission of previously undisclosed evidence, at a sentencing hearing, was harmless error, in no small measure, because, though defense counsel objected to “the late filing” of a victim impact statement—the State having provided that statement “just 20-25 minutes prior to the commencement of the sentencing hearing“—he did not move for a postponement but, rather, stated that he would address the improperly admitted evidence “if I have to.” Id. at 169, 627 A.2d 541.
Given defense counsel‘s failure to indicate, during sentencing, that he was not prepared to respond to any information adduced by the State, and the sentencing court‘s express reliance, in pronouncing sentences, on the uncontested brutality of the murders and Lopez‘s violent criminal history, we conclude that neither the State‘s violation of
II.
Victim Impact Video
Lopez also contends that the sentencing court erred in permitting what he describes as “a ‘music/video slide
show’ depicting the lives of the victims” to be played at the sentencing hearing. Its probative value, he claims, “was vastly outweighed by its capacity for unfair prejudice,” and, consequently, its introduction violated both the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment. For the reasons that follow, we believe that the circuit court did not abuse its discretion in permitting the presentation, by the State, of the video in question, at sentencing.6 Under an abuse-of-discretion
The challenged video was an approximately six-minute montage of 115 still photographs, showing the two victims, Jane and William McQuain, throughout their lives, either alone, together, or with a family member or friend. The video began with a bell ringing. It was then initially accompanied by a piano instrumental piece and then by a pop song, as each photograph faded in and out. Finally, it concluded with the same sound of a ringing bell that signaled the commencement of the video.
There was, moreover, no oral or written narration in the video. In fact, the only words in the video were those comprising the video’s title, “The Story of Jane and William,” and the credits at the end of the video, listing individuals who provided photographs. Over Lopez’s objection, Bill McQuain, the brother of Jane and uncle of William, who served as the Victims’ Representative, was permitted to show this video during his victim impact testimony.
A.
On appeal, Lopez suggests that presentation of the video at issue violated the
In Booth, the Supreme Court held that “the
But, during the pendency of this appeal, the Supreme Court, in Bosse v. Oklahoma, 580 U.S. —, 137 S.Ct. 1, 196 L.Ed.2d 1 (2016) (per curiam), put to rest the impression that Payne was to be read as an unqualified rejection of Booth’s prohibition as to victim impact evidence. There, the Court explained that Payne’s holding was “limited to” a “particular type of victim impact testimony,” id., 137 S.Ct. at 2
The Booth Court, however, declined to address whether the
We note, however, that our decision today is guided by the fact death is a “punishment different from all other sanctions,” see Woodson v. North Carolina, 428 U.S. 280, 303-304, 305, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (plurality opinion of Stewart, Powell, and Stevens, JJ.), and that therefore the considerations that inform the sentencing decision may be different from those that might be relevant to other liability or punishment determinations. ... We
imply no opinion as to the use of these statements in non[-]capital cases.
Booth, 482 U.S. at 509 n.12, 107 S.Ct. 2529 (emphasis added).
But, even if the
B.
We begin our analysis of Lopez’s principal constitutional claim, namely, that the admission of the victim impact video at issue violated the Due Process Clause of the
To be more precise,
As the Court of Appeals has said, “[t]he impact of a crime on ... the victim’s family is both relevant and probative” at sentencing. Ball, 347 Md. at 198, 699 A.2d 1170. Accord Evans v. State, 333 Md. 660, 687, 637 A.2d 117 (1994). Lopez claims, however, that “[a]ny probative value possessed by the evidence—a six-minute video montage of approximately 115 photographs of the victims set to music—was vastly outweighed by its capacity for unfair prejudice,” and thus its admission at sentencing violated the Due Process Clause.
In holding that states may permit consideration of victim impact statements during capital sentencing proceedings, in Payne v. Tennessee, supra, 501 U.S. 808, 111 S.Ct. 2597, the Supreme Court stated that the “State has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family.” Id. at 825, 111 S.Ct. 2597 (quoting Booth, supra, 482 U.S. at 517, 107 S.Ct. 2529 (White, J., dissenting)). Such “victim impact evidence,” explained the Court, “is simply another form or method of informing the sentencing authority about the specific harm
In addition to the
Since Payne was decided, the Supreme Court has not clarified the test that courts should apply in resolving a claim that “unduly
But we have not been left entirely adrift and without a constitutional compass. In a concurring opinion, in Payne, 501 U.S. at 830-33, 111 S.Ct. 2597, Justice Sandra Day O’Connor suggested that “unfairly prejudicial” victim impact evidence, whose admission, during a capital sentencing proceeding, would violate the Due Process Clause, is evidence that is “unduly inflammatory,” id. at 831, 111 S.Ct. 2597, which admittedly, at first blush, appears to be no more than a circumlocution. Payne was convicted of stabbing to death a twenty-eight-year-old mother, Charisse Christopher, and her two-year-old daughter, Lacie, and wounding, with the same knife, her three-year-old son, Nicholas. Id. at 811-13, 111 S.Ct. 2597. The victim impact evidence at issue, there, was the testimony of Charisse Christopher’s mothеr, Mary Zvolanek, who, in conveying to the sentencing jury the effect that Payne’s crimes had had on her grandson, Nicholas, stated:
“He cries for his mom. He doesn’t seem to understand why she doesn’t come home. And he cries for his sister Lacie. He comes to me many times during the week and asks me, Grandmama, do you miss my Lacie. And I tell him yes. He says, I’m worried about my Lacie.”
Id. at 814-15, 111 S.Ct. 2597.
Applying the “unduly inflammatory” standard to this victim impact evidence, Justice O’Connor opined that Ms. Zvolanek’s “brief” testimony, although “mov[ing],” “did not inflame” the jury’s “passions more than” did the gruesome facts of the crime itself, the ghastly nature of which the Justice described as follows: “Charisse Christopher was stabbed 41 times with a butcher knife and bled to death; her 2-year-old daughter Lacie was killed by repeated thrusts of that same knife; and 3-year-old Nicholas, despite stab wounds that penetrated completely through his body from front to back, survived—only to witness the brutal murders of his mother and baby sister.” Id. at 832, 111 S.Ct. 2597 (O’Connor, J., concurring).
The Court of Appeals subsequently applied this “unduly inflammatory” test to a claimed due process violation, based upon the admission of victim impact evidence, in a capital case,
Echoing Justice O’Connor’s words in her concurring opinion in Payne, the Court of Appeals avowed that the “brief statements” of the victim’s sister did not “inflame[] the passion of the jury more than did the facts of the crime,” which was, as the Court observed, a “carefully planned” murder-for-hire, in which Evans “patiently waited in the lobby of the hotel for his opportunity, calmly fired nineteen bullets with a MAC-11 machine pistol at [the victims], and used the proceeds of his crime to go shopping at a mall with his girlfriend later that evening.” Id.
Then, in Whittlesey v. State, 340 Md. 30, 665 A.2d 223 (1995), the Court of Appeals reaffirmed its adoption of Justice O’Connor’s “unduly inflammatory” test for a due process claim, bаsed upon the admission of victim impact evidence, in a capital case, id. at 87, 665 A.2d 223 (citing Evans, 333 Md. at 689, 637 A.2d 117), but it did not have occasion to apply that test, because Whittlesey conceded, in his brief, that there had been no due process violation in his case. Id. Although Whittlesey did not address a due process claim, it, nonetheless, merits our attention, as it is the only reported Maryland appellate decision to consider the use of an “in life” video, during a sentencing proceeding, as occurred in the instant case.
In Whittlesey, the Court of Appeals held that the trial court did not abuse its discretion in allowing the jury, during a capital sentencing hearing, to view a 90-second video clip of a teenage murder victim playing the piano, “a skill for which he had been nationally recognized.” Id. at 86, 665 A.2d 223. Flatly rejecting Whittlesey’s claim that the video presentation was unnecessarily cumulative of the testimony given by the victim’s parents, the Court pointed out that the video was not merely cumulative, as it “illustrated [the boy’s] piano skill better than any still photograph” and “portray[ed] his appearance at the time of his death,” a portrayаl which was otherwise unavailable, as the victim’s body had decomposed by the time it had been found by police detectives. Id. at 87, 665 A.2d 223.
While our own appellate courts have not addressed the question of whether a montage of victim photographs, set to music and presented in video format, may be presented at sentencing, when the victim’s identity is not in question and the defendant has raised a due process objection, another appellate court, the Idaho Court of Appeals, in State v. Leon, 142 Idaho 705, 132 P.3d 462 (2006), has, under circumstances that parallel those presented by the case before us. And, in so doing, that appellate court upheld the admission of such information at sentencing for reasons we find persuasive.
In Leon, after the defendant entered an Alford plea to first-degree murder in exchange for the State’s agreement not to seek the death penalty, the State sought to present, at sentencing, a
four-and-one-half minute digital video disc (DVD) containing video and photographic images of [the victim] alone and with her children and other members of her family. The video portion of thе DVD had contemporaneous audio recordings and the portion showing still photographs was arranged in a montage and set to music.
Leon, 132 P.3d at 464. Then, at the conclusion of the sentencing hearing, the trial court imposed a sentence of life imprisonment, whereupon Leon noted an appeal, contending that the
In addressing “[w]hether a DVD presentation containing video and photographic
The six-minute video montage, at issue here, was only one-and-a-half minutes longer than the Leon video. It portrayed the harm inflicted by Lopez’s double murders, using still photographs of the victims to offer, at most, a “quick glimpse” into the two lives extinguished by Lopez. See Payne, 501 U.S. at 830, 111 S.Ct. 2597 (O’Connor, J., concurring). Neither the length of this victim impact video, which represents just three
Finally, the three out-of-state decisions that Lopez relies upon to support his claim that the admission of the victim impact video, at sentencing, violated his right to due process—Salazar v. State, 90 S.W.3d 330 (Tex. Crim. App. 2002), United States v. Sampson, 335 F.Supp.2d 166 (D. Mass. 2004), and State v. Hess, 207 N.J. 123, 23 A.3d 373 (2011)—are either factually or procedurally distinguishable from the instant case, or simply unpersuasive, or both.
In Salazar, 90 S.W.3d 330, the Court of Criminal Appeals of Texas held that the sentencing court erred in admitting, during a non-capital jury sentencing proceeding, following Salazar’s conviction for murder, “a seventeen-minute video montage of photographs ..., set to music from the movie Titanic.” Id. at 332. Desсribing the video as “lengthy, highly emotional, and barely probative of the victim’s life at the time of his death,” with background music that “greatly amplifie[d] the prejudicial effect of the original error,” the Texas appellate court held that the probative value of the video was “substantially outweighed”
The instant case presents a quite different set of circumstances. To begin with, the six-minute video at issue, here, unlike the Salazar90 S.W.3d at 338, and was, in contrast to the Salazar video, probative of the victims’ lives. Nor did the background music of that video “amplif[y]” its “prejudicial effect,” as occurred in Salazar. Id. at 339. Thus, unlike the
Second, as noted earlier, the sentencing proceeding, in the instant case, took place before a judge, not, as in Salazar, before a jury, a significant distinction, as “[t]rial judges are presumed to know the law and to apply it properly.” Ball, supra, 347 Md. at 206, 699 A.2d 1170. Thus, we routinely trust judges presiding at bench trials to assess, in their gatekeeping role, whether potentially unfairly prejudicial evidence should be admitted or excluded, and, if the evidence is unfairly prejudicial, that judge is not then required to recuse him or herself, as one presumes that a judge, unlike jurors, can put that evidence aside in making his or her decision. See, e.g., Williams v. Illinois, 567 U.S. 50, 132 S.Ct. 2221, 2235, 183 L.Ed.2d 89 (2012) (plurality opinion of Alito, J.) (observing that, in “bench trials, judges routinely hear inadmissible evidence that they are presumed to ignore when making decisions“).
And, finally, unlike in Salazar, where the appellate court determined that the error in admitting the victim impact video was not harmless, Salazar, 90 S.W.3d at 337, nothing in the record before us suggests that the court below, in any way, relied upon the video, in imposing sentence. In fact, the court’s statements, during sentencing, indicate that it was the brutal and heinous nature of the crimes committed by Lopez, as well as Lopez’s history of recidivism, which led it to impose the sentences it did. Consequently, even if admission of the video constituted error, that error amounted to no more than harmless error. In sum, given the foregoing differences between Salazar and the instant case, Salazar is only helpful in that it highlights how relatively free of unfair prejudice and inflammatory effect the instant video was, in contrast to what was presented by the prosecution in Salazar.
We now turn to the second of the three cases, relied upon by Lopez, United States v. Sampson, supra, 335 F.Supp.2d 166. In that capital case, thе United States District Court for the District of Massachusetts held that a twenty-seven-min-
The excluded video, in Sampson, has even less in common with the video at issue here, than the Salazar video, if for no other reason than its sheer length. The Sampson Court expressly noted that other courts, including the Maryland Court of Appeals, in Whittlesey v. State, supra, had admitted victim impact videos, during capital sentencing proceedings, but that, in all of those cases, the videos, at issue, were “brief and found to be probative of some aspect of the victim’s life.” Sampson, 335 F.Supp.2d at 191. Although the Lopez video is longer than those admitted in the cases cited approvingly, in Sampson (the longest of those was approximately three minutes long), it is, nonethelеss, far shorter and less likely to resemble a video “made for a memorial service” than the video excluded in Sampson. Id. Moreover, Sampson, like Salazar, but unlike the instant case, involved a sentencing proceeding before a jury. For the same reason Salazar is not helpful to our analysis, neither is Sampson, and, unlike in that case, where the court perceived “a danger of provoking undue sympathy and a verdict based on passion as opposed to reason,” Sampson, 335 F.Supp.2d at 191, no such danger was present here.
The third and final out-of-state authority, upon which Lopez relies, is State v. Hess, supra, 23 A.3d 373. Hess pleaded guilty to aggravated manslaughter, pursuant to a plea agreement, requiring her, among other things, to “acknowledge that she would receive a thirty-year prison sentence, subject to a parole disqualifier” of twenty-five and one-half years and that “neither she nor her attorney would seek a lesser term of imprisonment.” Id. at 376. She subsequently filed a post-conviction petition, alleging that her trial counsel was ineffec-
Although concluding that trial counsel had failed to provide effective assistance for two reasons unrelated to the video in question and accordingly vacating Hess’s sentence, the Supreme Court of New Jersey did find that the “professionally produced,” seventeen-minutes-long victim impact video contained “childhood photographs and music likely to appeal solely to emotion and engender undue prejudice,” as it included “photographs of the victim’s childhood and his tombstone and a television segment covering his funeral” and was “scored to popular, holiday, country, religious, and military music.” Id. at 393. The New Jersey appellate court stressed that, while the video’s “music and the photographs of the victim’s childhood and of his tombstone,” as well as its “television segment about his funeral,” failed to “project anything meaningful about the victim’s life as it related to his family and others at the time of his death,” it had “the great capacity to unduly arouse or inflame emotions.” Id. at 393-94.
The seventeen-minute Hess video, like those in Salazar and Sampson, is much longer than the one at issue here, although we hasten to add that mere length of a victim impact video, alone, is not necessarily dispositive of its propensity for undue prejudice. But, at least as important, the Hess video, in contrast to the Lopez video, contained a depiction of the victim’s tombstone and a “television segment about his funeral,” both of which, undoubtedly, had the capacity to inflame rather than to inform. Id.
In sum, the videos at issue in Salazar, Sampson, and Hess presented a far greater risk of unduly and unfairly prejudicing the sentencing authority than the video at issue here. Accordingly, we find no abuse of discretion and affirm.
JUDGMENTS OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AFFIRMED. COSTS ASSESSED TO APPELLANT.