David Simon, in his journalistic work, “Homicide: A Year on the Killing Streets, ” translates into “street-cred” 1 rhetoric the now-well-known Miranda 2 rights/protections:
“You have the absolute right to remain silent.” ....
Criminals always have the right to remain silent. At least once in your ... life, you spent an hour in front of a television set, listening to this book-‘em-Danno routine. You think Joe Friday was lying to you? You think Kojak was making this ... up? No way, bunk, we’re talking sacred freedoms here, notably your Fifth ... Amendment protection against self-incrimination, and hey, it was good enough for Ollie North, so who are you to go incriminating yourself at the first opportunity? Get it straight: A police detective, a man who gets paid government money to put you in prison, is explaining your absolute right to shut up before you say something stupid.
“Anything you say or write may be used against you in a court of law.”
Yo, bunky, wake ... up. You’re now being told that talking to a police detective in an interrogation room can only hurt you. If it could help you, they would probably be pretty quick to say that, wouldn’t they? They’d stand up and say you have the right not to worry because what you say or write in this ... cubicle is gonna be used to your benefit in a court of law. No, your best bet is to shut up. Shut up now.
*115 “You have the right to talk to a lawyer at any time— before any questioning, before answering any questions, or during any questions.”
Talk about helpful. Now the man who wants to arrest you for violating the peace and dignity of the state is saying you can talk to a trained professional, an attorney who has read the relevant portions of the Maryland Annotated Code.... Take whatever help you can get.
Simon notes that, notwithstanding this popular understanding, many suspects, even after advisement, inculpate themselves willingly while being interrogated. We consider in this case a defendant that followed Simon’s and Miranda’s advice—he remained silent. Yet the State used that silence against him at trial, and now asks us to decide whether his post-arrest, post-Miranda silence was admissible properly against him.
Raymond Charles Lupfer (“Lupfer” or “Petitioner”) challenges a judgment of the Court of Special Appeals that reasoned in its opinion that the prosecution was entitled, under the circumstances here and the “fair response doctrine,” as established in
United States v. Robinson,
FACTS AND LEGAL PROCEEDINGS
The State’s evidence at trial was sufficient, if believed, to establish that, on 16 June 2007, Lupfer shot and killed Jeremy Yarbray (“Yarbray”) outside of a residence at 159 Mahogany Drive in Cecil County, Maryland. The details of how the fatal shooting occurred were disputed sharply at Lupfer’s trial in the Circuit Court for Cecil County.
*116 Yarbray was invited to the residence—owned by an acquaintance of Lupfer—to sell narcotics to Lupfer’s companions. Lupfer testified that, upon coming out of a bathroom, he observed Yarbray in the living room engaged in a confrontation with Derek Patton, another of Lupfer’s acquaintances. Lupfer testified further that he saw a handgun laying in the middle of the floor near the confrontation and, sensing a “threatening situation,” reached down to pick up the gun, at which time Yarbray reached simultaneously for and grabbed the gun. Allegedly, during the course of a brief struggle between Lupfer and Yarbray, the gun discharged three times. Lupfer’s defense at trial was that the gun discharged accidentally in the course of the struggle, and that Lupfer had no intent to kill or inflict deadly harm upon Yarbray.
The State’s witnesses attested to renditions of the events leading up to the fatal shooting different than Lupfer’s version. Patton and Joshua Jackson (Patton’s cousin) testified that, when Yarbray entered the townhouse, Lupfer asked Yarbray, “Do you remember me?” A struggle ensued between the two. Jesse Kennedy, yet another acquaintance of Lupfer, testified that Lupfer struck Yarbray in the face with a handgun and, after Yarbray “crawl[ed] out [the] front door” and “stumbled down the steps, ... [Lupfer] went over to the door and opened the door and began to fire shots.” Jackson testified that, after Lupfer asked Yarbray, “Do you remember me?” he saw Yarbray “push[ ] his hands up in the air,” and that, after Jackson ran out the back door of the residence, he heard approximately three gunshots. Kyle Slayman, a neighbor, testified that he saw “a guy running and ... [saw] gunshots shooting him and he fell to the ground,” and that he saw Lupfer “coming from the house” while “shooting the guy.”
A few days after the shooting, a resident of a nearby trailer park found a handgun laying near his pickup truck and called 911. Ballistics testing showed that the gun recovered from the trailer park fired at least one of the bullets recovered from Yarbray’s body. Forensic analysis revealed Lupfer’s DNA on the trigger guard and handgrip of the gun.
*117 Lupfer testified that, following the shooting, he ran out the back of the residence, threw the gun in the nearby woods, and encountered a former co-worker who agreed to give him a ride in his truck to New Jersey, where Lupfer claimed to have another friend with whom he could stay. After reaching New Jersey, Lupfer claimed he called his girlfriend, Pam Hamilton, in Maryland, to come pick him up, “[b]ecause I had time to think about what was going on and I needed to come back to Maryland.” Lupfer stated that, on his return to Maryland, he intended to go to Hamilton’s house “[bjecause I had been up for almost two days and I wasn’t prepared mentally or physically to deal with going to turn myself in instantly,” and, therefore, he was going to “[t]ry to get some sleep and prepare to go talk to the police.” Upon Hamilton’s arrival in New Jersey, a truck driver agreed to drive Lupfer and Hamilton to a truck stop in Cecil County. Ultimately, the police arrested Lupfer later that night, as he was resting in the cab of the truck driver’s truck, now back in Cecil County.
After the conclusion of Lupfer’s direct testimony, the following bench conference ensued:
[PROSECUTOR]: Your Honor, may we approach briefly, please?
[COURT]: Come on up.
[PROSECUTOR]: Your Honor, among other things that this defendant has said in the course of his testimony is that he intended to speak to police. In fact, after he was arrested he was questioned and he elected not to say anything to police. Ordinarily I could not comment upon that, but it appears to me that when a defendant such as Mr. Lupfer gives testimony that he intended to speak to police, even as he was in New Jersey according to his testimony, deliberating about the issue of turning himself in, I believe that has now opened the door to that cross-examination. Before I go there, I just wanted to bring that matter to the bench.
[COURT]: Uh-huh.
*118 [DEFENSE COUNSEL]: I don’t think that he is. And the reason is because Mr. Lupfer originally did not think that there was going to be a serious charge such as murder brought against him. And when the police arrested him and told him that, he said, [o]h, shit, this is more serious than I thought.
[COURT]: Okay.
[DEFENSE COUNSEL]: I better talk to my attorney.
[COURT]: Okay. Well, you can bring that out but I think the door has been opened. I think you’re right, [prosecutor].
Thereafter, the prosecutor cross-examined Lupfer in the following fashion regarding his return to Cecil County from New Jersey:
[PROSECUTOR]: [Y]ou were coming back to Cecil County because you wanted to turn yourself in.
[LUPFER]: Yes.
[PROSECUTOR]: You wanted to talk to the police, right? [LUPFER]: I wanted to get the situation straightened out. [PROSECUTOR]: You wanted to try to clear yourself, right?
[LUPFER]: I wanted to get the situation—I’m not sure of my intentions, but running was not my intention. It was just going to get worse and I knew there is only one person that is going to say what needs to be said, and that was me.
[PROSECUTOR]: Mr. Lupfer, after the police arrested you, they took you back to the police station, right? [LUPFER]: Yes, sir.
[PROSECUTOR]: And they asked you if you wanted to talk about what had happened, correct?
[LUPFER]: No, they did not.
[DEFENSE COUNSEL]: Objection. I objected, Your Honor.
*119 [COURT]: The objection and the reason therefore is on the record. Go ahead.
[PROSECUTOR]: They asked you if you wanted to talk about what happened; is that correct, Mr. Lupfer? [LUPFER]: No, sir. It’s not correct. Would you like me to tell you what took place when I got there? [PROSECUTOR]: Well, I’m sure they took your fingerprints and took your photographs. I mean, we know that so I’m not interested in that.
[LUPFER]: Yes, sir.
[PROSECUTOR]: But I’m just wanting to know whether they offered you the opportunity to tell your side of the story.
[LUPFER]: No. Before they slid the charges charging me with first degree murder, before they slid them charges in front of me, no, they did not give me a chance to say anything. And when I seen the charges, I asked for a lawyer.
As a rebuttal witness, the State called Sergeant David J. Sexton of the Maryland State Police, who acted as the lead investigator in the case.
[PROSECUTOR]: What, if any, efforts did you make to question Mr. Lupfer about this case subsequent to arrest? And I take Mr. Brown’s objection to be preserving the record for his earlier objection.
[COURT]: Overruled.
[SERGEANT SEXTON]: When we brought him back to the barrack, we placed him in an interview room. I came in with another investigator, Corporal or TFC Bachtell. Basically I sat down with [Lupfer] and advised him that—I asked him, I said, [Lupfer], you know why you’re here, but before I start asking any questions of you, I’m going to read you your advice of rights, and I read them verbatim.
During that time [Lupfer] had asked me what he was being charged with. I told him he was being charged with murder as a result of what happened over in Timberbrook, *120 and that’s when I read him his advice of rights and he elected not to answer any questions. He said he would have to talk to a lawyer because those charges were very serious and he wanted to speak to a lawyer.
The jury acquitted Lupfer of first-degree murder, but convicted him of second-degree murder, first-degree assault, and use of a handgun in a crime of violence. The Circuit Court sentenced Lupfer to forty years’ incarceration.
Petitioner appealed timely to the Court of Special Appeals. A panel of the intermediate appellate court, in a reported opinion,
Lupfer v. State,
Applying its understanding of the law relating to the admissibility of post-arrest, post-Miranda silence, the intermediate appellate court explained:
Here, [Lupfer] testified that, although he fled to New Jersey after the shooting, he returned to Maryland to turn himself in to the police. On cross-examination, before being questioned regarding his actions after arrest, appellant testified that he wanted to talk to the police “to get the situation straightened out,” stating that he “knew that there was only one person that is going to say what needs to be said, and that was me.” This testimony created the impres *121 sion that appellant was cooperating fully with the police. Pursuant to the above authorities, it was not fundamentally unfair for the State to rebut this impression of cooperation and elicit evidence that appellant subsequently declined to talk with the police.
Lupfer,
Petitioner filed timely a petition for writ of certiorari, which we granted,
Lupfer v. State,
STANDARD OF REVIEW
It is well-settled that “trial judges have wide discretion to admit or exclude items of evidence.... ”
Gauvin v. State,
ANALYSIS
The Fifth Amendment to the United States Constitution, made applicable to the states by incorporation through the Due Process Clause of the Fourteenth Amendment,
see Sapero v. Mayor & City Council of Baltimore,
*122 [T]he prosecution may not use statements ... stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards.... Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.
*123 For the last number of decades, the courts of this State and other states, as well as the federal courts, have fleshed out the reach of the prohibition against “penalizing” a defendant for remaining silent. The caselaw differentiates generally between pre- 5 and post-arrest silence, and regarding post-arrest *124 silence, between pre- 6 and post-Miranda 7 silence. This case presents us with the opportunity to determine whether the State’s use of Petitioner’s post-arrest, post -Miranda silence may be used against him to “fairly respond” to an argued inference that Petitioner sought to create a favorable impression that he returned to Maryland intending to cooperate with the police.
I. The Sounds of Silence
The Supreme Court, this Court, and commentators warn at length about the dangers of introducing at trial the fact that a defendant in a criminal case decided not to speak to law enforcement personnel, especially where that refusal occurred following arrest and after the defendant is advised of his or her
Miranda
rights. In
United States v. Hale,
[T]he situation of an arrestee is very different, for he is under no duty to speak and ... has ordinarily been advised by government authorities only moments earlier that he has a right to remain silent, and that anything he does say can and will be used against him in court.
*125 At the time of arrest and during custodial interrogation, innocent and guilty alike—perhaps particularly the innocent—may find the situation so intimidating that they may choose to stand mute. A variety of reasons may influence that decision. In these often emotional and confusing circumstances, a suspect may not have heard or fully understood the question, or may have felt there was no need to reply. He may have maintained silence out of fear or unwillingness to incriminate another. Or the arrestee may simply react with silence in response to the hostile and perhaps unfamiliar atmosphere surrounding his detention.
Hale,
The danger is that the jury is likely to assign much more weight to the defendant’s previous silence than is warranted. And permitting the defendant to explain the reasons for his silence is unlikely to overcome the strong negative inference that the jury is likely to draw from the fact that the defendant remained silent at the time of his arrest.
Hale,
In Maryland, we have said that, “[i]n general, silence is evidence of dubious value that it is usually inadmissible under Maryland Rule 5-402 [relevance] or 5-403 [prejudice].”
Kosh v. State,
[A] defendant’s failure to come forward does not constitute an admission, and lacks probative value. Citizens ordinarily *126 have no legal obligation to come forward to the police. Failure to come forward to the police may result from numerous factors, including a belief that one has committed no crime, general suspicion of the police, or fear of retaliation. Such silence is simply not probative as substantive evidence of guilt.
(Citations omitted.);
see Snyder v. State,
The prejudice to a defendant resulting from reference to his silence is often substantial. As the Fifth Circuit observed, “we would be naive if we failed to recognize that most laymen view an assertion of the Fifth Amendment privilege as a badge of guilt.” Walker v. United States,404 F.2d 900 , 903 (5th Cir.1968). Silence at the time of arrest has a significant potential for unfair prejudice.
Grier,
II. A More Nuanced Look at the Evolution of the Federal Law of Post-Arrest,
Post -Miranda Silence
In
United States v. Hale, supra,
noting the “importance of th[e] question to the administration of justice,” the Supreme Court dealt with “whether a defendant can be cross-examined about his silence during police interrogation [post-arrest and
post-Miranda
]____”
Hale,
Because the Supreme Court in
Hale
disposed of the case on evidentiary grounds, it did not address the question of whether admitting evidence of the silence would be unconstitutional.
See id.
It would be less than a year, however, before the Supreme Court would “decide whether impeachment use of a defendant’s post-arrest silence violates any provision of the Constitution....”
Doyle,
It goes almost without saying that the fact of post-arrest silence could be used by the prosecution to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest. In that situation the fact of earlier silence would not *128 be used to impeach the exculpatory story, but rather to challenge the defendant’s testimony as to his behavior following arrest.
Doyle,
In
United States v. Robinson,
III. A More Nuanced Look at the Evolution of the Maryland Law of Post-Arrest,
Post -Miranda Silence
That the Supreme Court holds that it is not unconstitutional for a prosecutor to offer evidence relating to a defendant’s post-arrest,
post-Miranda
silence in “fair response” to a claim made by defendant does not end our inquiry. Although holdings of the high Court serve as a national federal “constitutional minimum,”
see Baldwin v. State,
Petitioner argues generally that “Article 22 of the Declaration of Rights provides heightened protection to the right to silence.” Article 22 of the Maryland Declaration of Rights provides “[t]hat no man ought to be compelled to give evidence against himself in a criminal case.” We have stated repeatedly that “the privilege against self-incrimination protected by Article 22 of the Maryland Declaration of Rights
‘generally
’ is
‘in pari materia
’ with the Self-Incrimination Clause of the Fifth Amendment.”
Marshall v. State,
In
Grier, supra,
the defendant was convicted in the Circuit Court for Baltimore City of attempted robbery with a deadly
*131
weapon, maiming, and related offenses.
Grier,
We began our analysis by reiterating a few general principles of law relating to the admissibility of post-arrest silence:
*132 Evidence of post-arrest silence, after Miranda warnings are given, is inadmissible for any purpose, including impeachment. See Doyle v. Ohio,426 U.S. 610 , 619,96 S.Ct. 2240 , 2245,49 L.Ed.2d 91 (1976); Miranda v. Arizona,384 U.S. 436 , 468 n. 37,86 S.Ct. 1602 , 1624 n. 37,16 L.Ed.2d 694 (1966). As a constitutional matter, allowing such evidence would be fundamentally unfair and a deprivation of due process. As an evidentiary matter, such evidence is also inadmissible. When a defendant is silent following Miranda warnings, he may be acting merely upon his right to remain silent. Thus, a defendant’s silence at that point carries little or no probative value, and a significant potential for prejudice.
Grier,
*134 IV. The Present Case
Both Petitioner and the State latch on to different language from Grier. Petitioner points to Grier’s suggestion that “[evidence of post-arrest silence, after Miranda warnings are given, is inadmissible for any purpose, including impeachment”—citing it throughout his brief in support of his argument of error. Notwithstanding this general statement, the State argues the evidence relating to Petitioner’s post-arrest, post -Miranda silence was admissible under the “fair response” doctrine. Because Petitioner does not contest the viability vel non of the fair response doctrine, our task is to determine whether eliciting evidence relating to Petitioner’s post-arrest, post-Miranda silence was permissible under the doctrine.
The Supreme Court has provided little guidance as to what circumstances entitle the prosecution to a fair response.
See
Frank R. Herrmann
&
Brownlow M. Speer,
Standing Mute at Arrest as Evidence of Guilt: The “Right to Silence” Under Attack,
35 Am. J.Crim. L. 1, 14 (2007) (“Both the
Doyle
and
Weir
decisions invite confusion as to the limits of their holdings.”). From
Doyle,
we learn that the prosecution may employ a fair response relating to a defendant’s post-arrest silence to “contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest.”
Doyle,
In
United States v. Fairchild,
Some cases have gone further, holding that the Government may introduce permissibly evidence relating to post-arrest, post
-Miranda
silence, not only when a defendant or his counsel states expressly that he cooperated with law enforcement, but also when the defendant “created an impression of general cooperation with police after arrest----”
United States v. Shue,
In the present case, in arguing that Petitioner opened the door to Sergeant Sexton’s testimony in fair response regarding Petitioner’s post-arrest, post-Miranda silence, the State points to the following testimony from Petitioner:
Direct Examination:
(1) Petitioner stating that he called Hamilton to pick him up in New Jersey so that she could take him “[b]ack to Maryland,” “[b]ecause I had time to think about what was going on and I needed to come back to Maryland.”
(2) Petitioner stating that his intention was, upon returning to Maryland from New Jersey, to go to Hamilton’s house, “[b]ecause I had been up for almost two days and I wasn’t prepared mentally or physically to deal with going to turn myself in instantly,” so he was going to “[t]ry to get some sleep and prepare to go talk to the police.”
Cross-Examination: 14
*138 (1) Petitioner answering “Yes” to the prosecutor’s question, “[You were] thinking about coming back to Cecil County because you wanted to turn yourself in[?]”
(2) Petitioner responding, “I wanted to get the situation straightened out,” to the prosecutor’s question, “You wanted to talk to the police, right?”
(3) Petitioner saying, “I wanted to get the situation—I’m not sure of my intentions, but running was not my intention. It was just going to get worse and I knew there is only one person that is going to say what needs to be said, and that was me,” to the prosecutor’s question, “You wanted to try to clear yourself, right?”
The State did not elicit the testimony of Sergeant Sexton for the purposes of rebutting the Petitioner’s claim that he cooperated fully with police or that he created an impression or implication that he had cooperated fully with the police. Rather, using the State’s words, “Lupfer ... created the impression for the jury that he fully
intended
to cooperate and speak with the police,” at some unspecified, undetermined, future time when he reached Maryland. Although the distinction between claiming to have cooperated with police and claiming to intend, at some undetermined point in the future, to cooperate with police may seem subtle, it is not a distinction without a difference in the context of this analysis. As one court stated, “courts have recognized situations in which it is not a violation of due process for the prosecutor to elicit on cross-examination the fact of the defendant’s
post-Miranda
silence for the purpose of impeaching the defendant’s testimony
about his or her interactions with the police after the arrest.” State v. Cockrell,
As noted
supra,
the “opening the door” doctrine operates to make “evidence which was previously irrelevant ... now relevant through the opponent’s admission of other evidence on the same issue.”
Clark,
V. Harmless Error?
The State argues, in the alternative, “[assuming,
arguendo,
that evidence of Lupfer’s post-arrest,
post-Miranda
silence ... was admitted at trial in error, reversal of Lupfer’s convictions is not warranted in this case,” asserting that any error was harmless. We have stated that “[a]n error is not harmless unless, upon an independent review of the record, a reviewing court is able to declare beyond a reasonable doubt that the error in no way influenced the verdict.”
Grier,
Once the State put before the jury the fact that [defendant] had been advised of his rights yet offered no evidence of a subsequent statement by Dupree, the inference of [defendant’s silence, and thus his guilt, lay dangling for the jury to grab hold. It may well be so that the jury did “take the bait.” In our nation, the advice of rights upon arrest, and particularly of the right to remain silent upon arrest ... is widely known. Combined with this commonplace knowledge of the right to remain silent and what it signifies is the taint its invocation places on those who exercise it.
Dupree,
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH DIRECTIONS TO VACATE THE JUDGMENT OF THE CIRCUIT COURT FOR CECIL COUNTY AND REMAND TO THAT COURT FOR A NEW TRIAL. COSTS TO BE PAID BY CECIL COUNTY.
Notes
. One is said to have "street cred” when he or she "command[s] a level of respect in an urban environment due to experience in or knowledge of issues affecting th[at] environment[].” Street Cred, http://www.urban dictionary.com/define.php?term=street + cred (last visited 19 May 2011).
.
See Miranda v. Arizona,
. Rejecting Lupfer’s argument that, notwithstanding the federal case-law, evidence of his post-arrest, post-Miranda silence is inadmissible under Article 22 of the Maryland Declaration of Rights, the Court of Special Appeals explained:
Here, although [Lupfer] states generally that Article 22 of the Maryland Declaration of Rights has been construed more broadly than the Fifth Amendment in some instances, he has made no specific argument why this Court should construe the State constitution more broadly than the Fifth Amendment in regard to the issue presented in this case, i.e., the constitutionality of admitting evidence of post-Miranda silence to rebut the impression created by the defense that the defendant cooperated fully with the police. Accordingly, we will not address this issue.
Lupfer v. State,
. The Court of Special Appeals declined to address Lupfer’s contention that "the trial court erred in permitting the State to introduce the fact that Lupfer, when questioned by police, asked to speak with an attorney,” explaining that, having not "object[ed] or otherwise alert[ed] the court that an analysis different from that regarding the admission of his silence was required,” the argument was not preserved for appellate review.
Lupfer,
Finally, the intermediate appellate court rejected Lupfer’s argument that the trial court "abused [its] discretion in failing to afford Lupfer a remedy after ruling that several of the State’s witnesses violated the court's sequestration order.”
Lupfer,
.
In Jenkins v. Anderson,
. In
Fletcher v. Weir,
. We held in
Dupree v. State,
. In
Greer v. Miller,
. We explained that "[t]he predicate for this deviation ... [i]s our State’s common law and 'the approach taken by this Court generally with respect to defendants’ rights and entitlements in criminal cases.’ "
Newman v. State,
. We need only address a constitutional issue "if the testimony ... was proper as a matter of Maryland evidentiary law.”
Dupree,
. Although clear that the silence alluded to by the officer’s response to the prosecutor's question was post-arrest, we noted that we could "not determine from the record ... whether there was a period of time when Petitioner was arrested and had not received
Miranda
warnings or whether Petitioner was advised at any time of his
Miranda
rights.”
Grier v. State,
. In
Grier,
the Court appeared to treat the "fair response" and "opening the door” doctrines as separate and distinct concepts. A large number of courts conflate these two doctrines.
See Goldwire v. Folino, 274
Fed.Appx. 143, 146 (3d Cir.2008) (holding that a prosecutor's commenting on a defendant's Fifth Amendment silence "was a fair response to defense counsel’s opening statement” because "defense counsel had opened the door”);
United States v. Martinez-Larraga,
. The Court of Special Appeals addressed a post-arrest,
post-Miranda
silence issue in
Ware v. State,
. At oral argument, there was discussion of the extent to which a defendant may open the door to the admission of evidence relating to post-arrest,
post-Miranda
silence, not solely on direct examination by his own counsel, but on cross-examination as well. Because we conclude that, even considering Petitioner’s statements on cross-examination, Petitioner did not open the door to a fair response relating to Petitioner's silence, we need not decide that question today. We do note, however, a line of cases questioning whether a defendant's testi
*138
mony on cross-examination may open the door to the prosecution's admission of evidence relating to the defendant's silence. See, e.g.,
United States v. Shue,
. It is conceivable that, thinking he was not going to be charged if his version of what happened on 16 June 2007 at 159 Mahogany Drive was believed, or thinking at least that he was not going to be charged with murder, Petitioner intended initially to speak with law enforcement, but changed his mind after being told he was charged already with first-degree murder. This is consistent with defense counsel's comments to
*140
the trial court at the bench conference and Petitioner's testimony on cross-examination.
See
Op. at 118-19, 120-21,
. Maryland Rule 5-403 provides, in pertinent part: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice----"