Aftеr an eight-day trial, a jury sitting in the Circuit Court for Baltimore City convicted John Wagner, appellant, of first degree felony murder, armed robbery, and conspiracy to commit armed robbery. The court imposed a sentence of life imprisonment for the felony murder conviction and a consecutive sentence of twenty years for the conspiracy conviction.
On appeal, appellant presents seven questions for our review, which we have rephrased slightly as follows:
1. Did the trial court err by refusing to ask appellant’s requested voir dire question?
2. Must appellant’s convictions be reversed as a result of the introduction of other crimes evidence?
3. Did the trial court err in admitting evidence that appellant called out his girlfriend’s name while in custody, and thereafter in refusing to allow appellant to introduce evidence to explain his action?
4. Did the trial court err in restricting appellant’s ability to cross-examine a witness regarding her eligibility for parole?
5. Did the trial court err in admitting hearsay evidence?
6. Did the trial court err in refusing to tailor its flight and concealment ofevidence instructions to both sides’ theories of the case?
7. Did the trial court err in denying appellant’s request to appear without shackles during the announcement of the verdict and polling of the jury?
For the reasons set forth below, we shall affirm the judgments of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
On July 25, 2010, at approximately 11:00 p.m., Stephen Pitcairn arrived at Penn Station in Baltimore City. He was returning from a trip to New York, where he celebrated his 24th birthday with his sisters.
While Mr. Pitcairn was walking from the station to his apartment, located in the Charles Village section of Baltimore City, he was attacked and robbed by two individuals. Less than an hour later, at 12:05 a.m. on July 26, 2010, Mr. Pitcairn died due to a stab wound to his chest.
When Mr. Pitcairn arrived at the train station at approximately 11:00 p.m., he called his mother, Gwen Pitcairn, to let her know that he was back in Baltimore. He said he was going to walk home from the station, which he estimated to be a 15-20 minute walk. Mr. Pitcairn asked his mother to talk to him on his cell phone until he got home, stating: “I always feel so safe when you’re on the phone with me.”
Mr. Pitcairn was telling Ms. Pitcairn about his weekend with his sisters when Ms. Pitcairn heard “a lot of noise and commotion.” She heard Mr. Pitcairn state that he did not have any money, and he said: “Here, take my wallet.” Ms. Pitcairn heard a man say “shut up” twice. She then heard “something [that] sounded like [Mr. Pitcairn] got punched” and “shuffling” sounds. Someone then disconnected the call from Mr. Pitcairn’s phone.
Ms. Pitcairn, who was at her home in Florida, called 411 and was connected to 911 in Baltimore. By the time she spoke with the 911 operator, the Baltimore police already were aware that there had been an incident. At 2:45 a.m. on July 26, 2010, Ms. Pitcairn learned that Mr. Pitcairn had been killed.
Prior to the assault, Reggie Higgins was at his home on St. Paul Street. He heard loud noises outside, looked out of his second-floor window, and saw three people scuffling on the sidewalk in front of his home. Mr. Higgins observed a thin white male who was approximately six feet tall, whom he later learned was Mr. Pitcairn, backing away from two black individuals, both of whom Mr. Higgins believed were men. One of the individuals had braided hair or twists, and the other had short hair.
Mr. Pitcairn yelled: “[H]elp,” and Mr. Higgins ran down the stairs to his first-floor window to get a better view. He saw the two individuals tussling with Mr. Pitcairn, and he went to get his keys to go outside. When he looked back out the window, he saw Mr. Pitcairn on the ground. The assailant with short hair was leaning over Mr. Pitcairn, and the other was holding something, which appeared to be a wallet. Mr. Higgins used his keys to open his security door and yelled: “Hey!” By that time, however, the two assailants were gone.
Mr. Higgins ran to Mr. Pitcairn, saw that he was badly injured, and ran back inside to call 911. When he returned, he told Mr. Pitcairn that the police and an ambulance were on the way. Mr. Pitcairn kept struggling to speak, but the only word Mr. Higgins could make out was: “Mom.”
Mr. Higgins told the police that Mr. Pitcairn was attacked by two men. He believed that both assailants were men: (1) because he assumed that a woman would not be involved in that kind of activity; and (2) based on their build and stature. Both assailants were shorter than six feet tall and slightly built. Due to the low light, he was unable to get a close look at their faces, but he could tell that they both had medium complexions. Mr. Higgins observed that the attacker with the short hair was wearing blue jeans and a white or light gray T-shirt. He was not sure about the color of the attacker’s clothing, however, as he is “a little colorblind” and has trouble seeing certain colors.
Mr. Higgins believed that the assailants had run south, down St. Paul Street. Police investigators later obtained video footage from the intersection of Charles Street and 26th Street that showed two people running westbound on 26th Street, between St. Paul and Charles Streets, at 11:22 p.m.
At approximately 11:50 p.m., Gregory Boris, the lead detective in the investigation of Mr. Pitcairn’s murder, arrived at Mr. Higgins’ address. The crime scene, which took up a small portion of the sidewalk, consisted of Mr. Pitcairn’s “red and black gym bag, a flip-flop” and a pool of blood. After returning to the Baltimore Police Department Homicide Unit, Detective Boris called Ms. Pitcairn, who advised that her son had offered his iPhone and brown leather wallet to the assailants.
In response to the murder, Officer Kevin Ege was assigned to patrol the area. At 2:54 a.m. on July 26, 2010, as Officer Ege was driving north on Charles Street approaching 25th Street, he saw two individuals talking animatedly and gesturing abruptly. As he got closer, one of the two, Tyrene Williams, flagged him down. The person with Ms. Williams, a black male wearing dark-colored shorts and a white t-shirt, ran away as Officer Ege approached.
At 4:00 a.m., Detective Boris was notified that Officer Ege had located a possible witness to Mr. Pitcairn’s murder. He interviewed Ms. Williams, who gave a taped statement to the police at 4:27 a.m., stating that appellant robbed a white man, hurt him, and took his credit card. Ms. Williams advised that she had gone to a gas station as part of a scheme to use Mr. Pitcairn’s credit card to buy gas for people in exchange for money. Based on information from Ms. Williams, the police obtained a search and seizure warrant for the second floor apartment at 2607 Maryland Avenue, where Ms. Williams lived with a number of other individuals, including appellant.
Detective Boris interviewed Mr. Cosby at the police station. After receiving his Miranda
At 7:10 a.m., a SWAT team executed the search warrant for appellant’s apartment. Detective Boris arrived at the residence after all the individuals present had been secured in the kitchen. These individuals, including appellant, appellant’s girlfriend Lavelva Merritt, Howard Michael Martin, Earlene Thomas, Tameka Quashie, Rodney Brown, as well as Rodney Brown’s infant son, were then transported from the residence to the Homicide Unit.
When Detective Boris arrived at the residence, he noticed what appeared to be blood smudges on the door. After the arrival of the crime lab, Detective Boris began searching the apartment for evidence related to the murder. In the front bedroom, Detective Boris noticed a LeBron James jersey that was draped over the back of a chair. The jersey appeared to be damp and cool, indicating that it could have been washed recently. Underneath the jersey was a pair of blue jean shorts, which Detective Boris placed on top of the jersey.
On a shelf in the bedroom, in plain view, Detective Boris saw the card insert portion of a brown leather Coach wallet, which Ms. Pitcairn later identified as a portion of Mr. Pitcairn’s wallet. He asked the crime scene technician to photograph and recover the wallet insert.
In addition to the other clothing items, the police also recovered a white hat that appeared to have blood on the brim, along with a second pair of white tennis shoes inside of a milk crate on the floor of the room. Detective Boris discovered a black folding knife inside the left shoe, and Mr. Pitcairn’s iPhone in the right shoe. Under a bed in the room, he found three other knives, two sharpened screwdrivers, a
On July 27, 2010, appellant was charged with first degree murder, second degree murder, armed robbery, robbery, first degree assault, second degree assault, theft, conspiracy to commit murder, and conspiracy to commit armed robbery. Five of the residents of 2607 Maryland Avenue testified at appellant’s trial as witnesses for the State, including Ms. Merritt, who was charged with the same crimes as appellant for her role in Mr. Pitcairn’s death.
Ms. Merritt testified that, prior to July 25, 2010, she had been living at 2607 Maryland Avenue with appellant, her boyfriend; her mother, Ms. Thomas; her mother’s boyfriend, Mr. Martin; her cousin, Mr. Cosby; and Ms. Williams, for a few weeks.
On July 25, 2010, Ms. Merritt was at home during the day; she had not used any drugs. That evening, Ms. Merritt and appellant left the apartment because appellant said he “wanted some money.” Ms. Merritt understood appellant to mean that he “wanted to rob somebody.” She agreed to go with him to find someone to rob, and they left, without having any particular destination. Ms. Merritt did not bring a weapon with her, but appellant brought a “pocket knife.” Ms. Merritt described appellant’s clothing that day as khaki shorts, white Nike Airs, and a LeBron James jersey. She wore pink stretch pants, a grey shirt, and flip flops.
A couple hours later, they saw Ms. Williams and Mr. Cosby. Ms. Merritt, appellant, and Mr. Cosby talked about robbing people, and Ms. Williams listened. Mr. Cosby told the group that he previously had “robbed a white lady” and “had no problem with robbing anybody.” They discussed profiling victims based on whether or not they looked like they had any money, and at the end of the conversation, the two couples went their separate ways, with no plans to meet up again.
Ms. Merritt and appellant went to a bar on St. Paul Street, near the train station, waiting for a victim. They noticed Mr. Pitcairn as he was leaving the train station. Appellant and Ms. Merritt looked at each other to signal that “he was our victim.” They followed Mr. Pitcairn up the street, and when he reached a part of the street where Ms. Merritt and appellant thought no one would see them, Ms. Merritt and appellant grabbed him from behind. Mr. Pitcairn told them he did not have any money; he tried to back away as appellant held him with one hand and pulled the knife out with the other. Appellant attempted to close the knife while keeping his grip on Mr. Pitcairn, and as he swung Mr. Pitcairn around to get a better grip, he stabbed him with the knife.
Mr. Pitcairn fell to the ground and said: “[T]ake my wallet, I don’t have [any] money.” Once Mr. Pitcairn was on the ground, appellant took his wallet, and Ms. Merritt punched him in the head and took his phone. Ms. Merritt heard a female voice on the phone saying “hello, hello, hello,” and then hanging up. Mr. Pitcairn’s phone subsequently rang and displayed the name “dad,” at which point Ms. Merritt turned the phone off.
After taking Mr. Pitcairn’s wallet and phone, appellant and Ms. Merritt ran back to their apartment. Ms. Merritt did not realize that appellant had stabbed Mr.
After cleaning up, Ms. Merritt and appellant went to the front bedroom. Appellant was upset over what happened with Mr. Pitcairn, and he began crying, stating: “[A]ll that over a phone, I didn’t mean to do it” and “I think I stabbed him twice ... that was a lot of blood.” Ms. Merritt told appellant not to worry about it, that “he’s going to make it.” After Ms. Merritt and appellant talked about what had happened, they “got down to business” to try to figure out how they could get money. Ms. Merritt stated that she was “going to sell his phone tomorrow.” Appellant suggested that they use Mr. Pitcairn’s credit card to get money, but he stated that he did not know how to use a credit card to get cash.
While appellant and Ms. Merritt were talking in the bedroom, Ms. Williams and Mr. Cosby arrived. Appellant asked Ms. Merritt if she wanted to ask Mr. Cosby how to get cash from the credit card, but Ms. Merritt stated: “I don’t trust [Mr. Cosby] like that.” Appellant told them that “we just hurt this white boy pretty bad.” He did not give them specifics as to what happened, just that they had hurt Mr. Pitcairn. He explained that they had taken Mr. Pitcairn’s credit card, but he did not know what to do with it. Ms. Williams then suggested they use it to sell gas. Ms. Merritt and appellant told Mr. Cosby and Ms. Williams that they could not go outside for fear of the police. Mr. Cosby and Ms. Williams then offered to use Mr. Pitcairn’s credit card to sell gas, on the condition that Mr. Cosby and appellant would split whatever money they made.
As they were leaving the house, Mr. Cosby took the bag containing appellant’s shorts and Mr. Pitcairn’s wallet and put it in a dumpster. Mr. Cosby and Ms. Williams returned to the house shortly thereafter; they were unable to use Mr. Pitcairn’s credit card without having his zip code. Mr. Cosby got Mr. Pitcairn’s wallet from the dumpster, obtained his Florida ID, and then appellant wrote Mr. Pitcairn’s zip code on a lottery ticket and gave it to Mr. Cosby. Appellant removed the insert portion of appellant’s wallet, which contained cards and photos, put the rest of the wallet back in the plastic bag, and Mr. Cosby threw the bag back in the dumpster.
Mr. Cosby returned later with money and “ready,” which Ms. Merritt testified was a form of crack cocaine. Appellant and Mr. Cosby smoked the crack in the bathroom and split the money between them. Mr. Cosby then woke Ms. Williams, who was sleeping on the floor, to go with him to the gas station.
After Ms. Williams and Mr. Cosby left, appellant began crying again. Ms. Merritt tried to console him, telling him that Mr. Pitcairn would be alright. Appellant and Ms. Merritt fell asleep, and they woke up to the sound of the police coming into the apartment. Appellant put Mr. Pitcairn’s phone and the knife in a pair of shoes in a crate.
Ms. Merritt acknowledged that the facts she gave in her testimony were different from those she gave when she first spoke to the police. The initial version of events that she gave to the police, in a taped statement, was that, on July 25, 2010, she and appellant were at home all day, and that her cousin, Mr. Cosby, had come to the apartment -with a credit card around 11:00 p.m. She gave the statement to protect appellant because she “didn’t want him to go to jail.”
After giving her initial statement, she went back to her cell. Later that day, she decided she wanted to speak tо the detectives again because she “wanted the truth to get out,” because “what happened to Mr. [Pitcairn] was wrong and it shouldn’t never happened.” Ms. Merritt was led back to an interview room, passing appellant’s cell on the way, and she began giving the police different information regarding her involvement. While in the interview room, she heard appellant shouting her name several times. After hearing appellant, she “felt that [she] was doing him wrong, so I told the police that I didn’t want to cooperate.” At that point, she ended the interview.
On September 13, 2010, after Ms. Merritt had been charged with murder and other offenses, she met with police detectives and an Assistant State’s Attorney to discuss a proffer agreement. Ms. Merritt understood the terms of the agreement to be that nothing she said that day would be used against her in court unless she were to testify in her own defense. Ms. Merritt decided to tell the police what happened on July 25, 2010, because she “felt bad for the family,” and Mr. Pitcairn’s murder “wasn’t even supposed to go down like that and it should have never happened.” She initially lied about what happened to protect appellant, not herself, explaining: “[I]f I really wanted to protect myself then I would still not say nothing whatsoever.”
On May 11, 2011, Ms. Merritt entered into a plea agreement, pursuant to which she would be given a 15-year sentence, the State would dismiss the murder charges and conspiracy to commit murder charges, and she would testify against appellant. Ms. Merritt acknowledged that she “could still be prosecuted for first-degree murder and conspiracy to commit first degree murder if the State [was] not satisfied with [her] testimony.” Ms. Merritt, who had two prior convictions for possession of narcotics with intent to distribute was aware that, on April 18, 2011, her thumb print was found on Mr. Pitcairn’s iPhone.
Ms. Williams and Mr. Cosby both testified for the State regarding the events leading up to and following Mr. Pitcairn’s murder.
On July 25, 2010, Ms. Williams, who described herself as a “moderate drug user,” used cocaine and heroin throughout the day, stating that her drug use went “from the moment I woke up until like twelve o’clock that night.” Mr. Cosby, who described himself as a “light drug user,” testified that he used heroin and cocaine with Ms. Williams throughout the day. Ms. Williams and Mr. Cosby left the apartment around 9:00 a.m. and walked to Charles Street, and they remained out of the apartment all day.
At 11:00 p.m. on July 25, 2010, Ms. Williams and Mr. Cosby were sitting on a bench at a bus stop at Charles Street and 25th Street. Appellant and Ms. Merritt joined them and began talking. Ms. Williams testified that appellant said that he was looking for someone to rob, and while he and Ms. Merritt discussed robbing someone, she and Mr. Cosby just listened. Mr. Cosby testified that he did not participate in the conversation about robbing people because he did not want to “go[ ] to no jail for no stupid stuff.” At the end of the conversation, appellant and Ms. Merritt walked away and turned right on 25th Street toward St. Paul Street, and Ms. Williams and Mr. Cosby walked up Charles Street back toward their apartment on Maryland Avenue.
On the way home, Ms. Williams and Mr. Cosby ran into a friend, with whom they used drugs. They then returned to the house and noticed police cars around the area of Charles Street and Maryland Avenue, as well as a police helicopter flying overhead.
When Ms. Williams and Mr. Cosby arrived at the apartment, appellant and Ms. Merritt were in their bedroom, along with Ms. Thomas and Mr. Martin, who were sleeping. Mr. Cosby testified that appellant and Ms. Merritt were “breathing all hard,” and when he asked why they were out of breath, appellant told him that he “just beat this little white guy up so bad, I feel bad about what I did to him.” Ms. Williams testified that appellant told her that “he had robbed this guy at the gas station ... he hurt him real bad.” Ms. Merritt and appellant then asked Ms. Williams and Mr. Cosby how to use a credit card to get cash. Appellant showed Ms. Williams and Mr. Cosby Mr. Pitcairn’s credit card, wallet, Florida driver’s license, and iPhone. Appellant came up with the idea to use the credit card at a gas station to buy people gas in exchange for cash, but he and Ms. Merritt did not want to go outside because the police were out, and appellant knew he had seriously hurt Mr. Pitcairn. Mr. Cosby volunteered to go instead.
Ms. Williams accompanied Mr. Cosby to the gas station, explaining that she was “fading” and wanted more drugs. They unsuccessfully attempted to use the card at one gas station, after which Ms. Williams returned to the house because she “didn’t feel right.” Mr. Cosby went to another gas station and then returned to the house twenty minutes later after he was unable to use the credit card without Mr. Pitcairn’s zip code. Appellant then wrote Mr. Pitcairn’s zip code down and gave it to Mr. Cosby.
Mr. Cosby testified that appellant instructed him to throw away Mr. Pitcairn’s wallet, and he put the wallet in a dumpster.
When Mr. Cosby returned to the gas station, he used the card to buy gas in exchange for cash, and he then used some of the money to buy crack cocaine. He returned an hour later with the money and crack, which he split with appellant. Ms. Williams and appellant then got into an argument. They left the apartment and continued arguing until they reached Charles Street and 25th Street.
At that point, Ms. Williams saw a police officer, and she flagged him down for the purpose of telling the officer that Mr. Cosby had a stolen credit card. Mr. Cosby, who had drugs and Mr. Pitcairn’s credit card on him, ran. Ms. Williams then told the officer: “[TJhere he goes ... he’s the one that did the robbery at the gas station.” She made that statement to indiсate that Mr. Cosby had the stolen credit card; she did not want him to have it.
Mr. Cosby ran to a friend’s house on Charles Street and “stayed in there until it got late.” He was sitting on the front steps when he saw a police car coming up the street. Mr. Cosby got up and started walking down the street, with the officer following him. The officer flashed his lights at Mr. Cosby and told him to stop. At that point, Mr. Cosby had hidden Mr. Pitcairn’s credit card, and he did not have any drugs on him. Mr. Cosby stopped, gave the officer his name, and the officer said that the police were looking for him. The officer asked Mr. Cosby about a murder, and Mr. Cosby said he did not know anything about anyone getting killed. The officer then took Mr. Cosby to the police station.
Ms. Williams’ description of appellant’s clothes that evening matched that given by Ms. Merritt, i.e., a LeBron James jersey, khaki-colored pants, a white hat, and white tennis shoes. She identified the white tennis shoes that contained a knife and Mr. Pitcairn’s iPhone as appellant’s shoes, and she described the knife as “the knife that Ya-Ya carries.” Ms. Williams had seen appellant with the knife the night of the murder.
Mr. Cosby testified that the white shoes under the chair in the room, as well as the LeBron James jersey, were appellant’s. Mr. Cosby testified that he kept his clothes in a little black bag in the room, and that the only shoes he owned were the white and green shoes that he was wearing on July 25 and 26, 2010. Both Ms. Williams and Mr. Cosby acknowledged that they had prior convictions, Ms. Williams for robbery and theft, and Mr. Cosby for first-degree burglary, robbery, attempted distribution of cocaine, rogue and vagabond and theft.
Ms. Thomas testified that she owned the apartment at 2607 Maryland Avenue where she lived with appellant, Ms. Merritt, Ms. Williams, Mr. Cosby, and Mr. Martin. Ms. Williams and Mr. Cosby stayed at the apartment occasionally and kept “a couple plastic bags of clothes” in the room. On July 25, 2010, Ms. Thomas
Ms. Thomas subsequently woke up between 2:30 and 3:00 a.m. She went into the kitchen and observed Mr. Cosby and Ms. Williams arguing; they then left the apartment. Ms. Thomas went back to sleep in the bedroom with Mr. Martin; Ms. Merritt and appellant also were in the bedroom. She woke up at approximately 7:30 or 8:00 a.m.; the police were entering the apartment. Ms. Thomas went to the police station, where she gave a taped statement, which was consistent with her testimony.
Ms. Thomas identified the jersey and shoes recovered from the apartment as belonging to appellant. She testified that she kept a butcher knife, several other knives, a box cutter, and a screwdriver under her mattress. Ms. Thomas had never seen appellant with a knife, but she knew that her daughter, Ms. Merritt, carried a small pocket knife. Ms. Thomas acknowledged that she had prior convictions for second-degree burglary and possession with intent to distribute narcotics.
Mr. Martin testified that, on the day of the murder, he spent the day watching movies and drinking. Appellant and Ms. Merritt were at the apartment during the day; they left at approximately 11:00 p.m. and returned approximately an hour later. When appellant and Ms. Merritt left the apartment, Mr. Martin was watching movies, while Ms. Thomas was sleeping beside him. When Mr. Martin went to sleep at approximately 4:00 a.m., appellant and Ms. Merritt were on the floor sleeping. Mr. Martin identified the jersey found by police in the apartment as appellant’s, along with the pair of white tennis shoes found under the chair in the front bedroom. He testified that the white tennis shoes found in the crate in the bedroom also belonged to appellant.
Detective Boris testified that Mr. Pitcairn’s credit card records confirmed that his Citibank card was used on July 26, 2010, at 1:48 a.m. to make a $56.96 purchase at an ExxonMobile gas station, and then again at 2:07 a.m. to make a $43.64 purchase at the Greenmount BP Amoco station. Detective Boris obtained video footage from both gas station parking lots, which depicted a man, who Detective Boris identified as Mr. Cosby, purchasing gas.
The State presented numerous witnesses to explain the forensic evidence that was recovered during the investigation of Mr. Pitcairn’s robbery and murder. The blood smudges observed by Detective Boris on the front door of 2607 Maryland Avenue yielded a DNA profile consistent with Mr. Pitcairn and the DNA of an unknown individual. Swabs taken from the neckline and sleeve cuffs of the jersey identified as appellant’s, contained a DNA profile consistent with appellant, Ms. Merritt, and at least one unknown individual. Mr. Pitcairn, Ms. Thomas, Mr. Martin, and Ms. Williams could not be excluded as potential contributors to the DNA profile.
The suspected blood stain on the left shoe that police found under the chair yielded a DNA profile consistent with a mixture of Mr. Pitcairn’s DNA and the DNA of another individual. Appellant and Ms. Merritt were identified as possible contributors to the DNA profile that was mixed with Mr. Pitcairn’s. The chances of selecting an unrelated individual as a possible contributor to that sample was one in 118,000 for African American individuals.
Swabs taken from the interior of the shoe under the chair contained a DNA
Numerous pieces of evidence obtained from 2607 Maryland Avenue were tested for the presence of fingerprints. The only latent print that was found was on Mr. Pitcairn’s iPhone, and fingerprint analysis revealed that the print matched Ms. Merritt’s left thumb.
Dr. Russell Alexander, аn Assistant Medical Examiner in the Office of Chief Medical Examiner in Baltimore, determined that Mr. Pitcairn’s death was a homicide, and the cause of death was a two-inch deep stab wound to Mr. Pitcairn’s chest, which injured the left ventricle, or the main pumping chamber, of his heart. He explained that a stab wound to the heart is characterized by “very rapid and very severe [ ] bleeding,” both internally and externally. Dr. Alexander also observed scrapes on Mr. Pitcairn’s lips as well as his left hand, knees, legs, and feet, but he was unable to determine whether the stab wound or the other injuries occurred first. Dr. Alexander agreed that abrasions could be a sign that a physical struggle occurred, but he opined that Mr. Pitcairn’s injuries could have been caused by “terminal collapse,” when an injured person falls to the ground as part of the dying process.
As indicated, the jury convicted appellant of first degree felony murder, armed robbery, and conspiracy to commit armed robbery. This timely appeal followed.
DISCUSSION
I.
Yoir Dire Question
During voir dire, the court addressed the potential jurors about the nature of the charges and then asked the following three-part question:
First, has any member of the jury panel ever been the victim of a violent crime? Second, has any member of the jury panel ever been convicted of a crime? And, third, does any member of the jury panel have a pending criminal charge?
The prosecutor asked that the court to broaden the question to include “any member of [the jurors’] immediate family.” Defense counsel agreed, asking the court to further broaden the scope of the inquiry to include jurors’ close friends. The court noted that, in previous trials, where a potential juror was “affected by a family member being a victim of a crime, they responded].” It asked defense counsel whether the question he was proposing was “a mandatory voir dire question,” and defense counsel responded that the question wаs not mandatory “in and of itself.” The court denied the request.
Appellant contends that the circuit court erred in refusing to broaden the voir dire question regarding whether a panel member had been a victim of a violent crime to include family members and close friends. He argues that the voir dire question asked by the court, without the additional inquiry regarding family and friends, “was insufficient to root out prejudice” and was not adequately covered by other questions. He asserts that, given the facts of this case, “where the State presented evidence that the victim’s mother was on the phone with the victim while he was being attacked,” “a juror whose family member or close friend had been victimized would be
The State argues that the circuit court properly exercised its discretion in declining to ask appellant’s requested voir dire question, asserting that the question was “not reasonably likely to reveal a challenge for cause” and was “fairly covered by other questions posed by the court.”
In Maryland, “ ‘the sole purpose of voir dire is to ensure a fair and impartial jury by determining the existence of cause for disqualification.’ ” Washington v. State,
We review a trial court’s refusal to propound a requested voir dire question under the abuse of discretion standard. State v. Shim,
The Court of Appeals has explained that specific causes for disqualification involve biases “directly related to (1) the defendant, (2) the witnesses, or (3) the crime.” Shim,
Appellant concedes that “an affirmative answer to the question of whether a family member or close friend was the victim of a violent crime would not have provided cause for disqualification by itself.” Maryland case law supports that concession.
In Perry v. State,
A juror’s having had prior experience as a juror, witness, victim or defendant in a criminal proceeding of any kind, or in one involving a crime of violence, is not per se disqualifying. It is even less tenable to argue that a juror is disqualified simply because of the experience of a member of the prospective juror’s family or on the part of a close personal friend.
Id. Accord Davis v. State,
Appellant notes that, in Dingle v. State,
Even if the Court of Appeаls subsequently overrules its prior precedent, we note that, in this case, the trial judge determined, based on his experience, that
II.
Other Crimes Evidence
Appellant next contends that his convictions should be reversed because other crimes evidence was improperly admitted on four occasions. Specifically, appellant argues that the court erred in: (1) admitting photo arrays containing his mug shot; (2) permitting Ms. Merritt to suggest that she knew he had committed other robberies; (3) admitting evidence that he used crack cocaine; and (4) denying his motion for a mistrial after Mr. Cosby testified that appellant had been “locked up” in the past. The State argues, as set forth below, that the circuit court properly exercised its discretion with respect to each of the four rulings challenged by appellant.
A.
Photo Array
Appellant argues that the trial court erred in admitting into evidence the photo arrays from which Ms. Williams and Mr. Cosby identified him as the person who told them that he had robbed and hurt someone. He acknowledges that “the identity of Mr. Pitcairn’s assailant was in dispute,” but he asserts that “the ability of Ms. Williams and Mr. Cosby to identify [appellant] was not,” and therefore, the photo arrays “added nothing of probative value to the State’s case.” Moreover, he argues, because the photo arrays “obviously contained mug shots,” suggesting that he had committed other crimes, the prejudice in admitting the photo arrays outweighed any probative value.
The State argues that the court properly admitted the photo arrays. It asserts that they were relevant, and, contrary to appellant’s contention, appellant’s photo was not obviously a mug shot.
Evidence is relevant if it has “ ‘any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ ” State v. Simms,
Even if legally relevant, however, “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” Maryland Rule 5-403. The weighing determination is left to the trial court’s discretion and is reviewed for abuse of discretion. Simms,
The Court of Appeals has explained that “ ‘a ruling reviewed under an abuse of discretion standard will not be reversed simply because the appellate court would not have made the same ruling.’ ” King v. State,
Thus, the first step in our analysis is whether the ability of Ms. Williams and Mr. Cosby to identify appellant in the photo arrays was relevant. The record reflects that Ms. Williams and Mr. Cosby had known appellant only for a few months before Mr. Pitcairn’s murder, they spoke with him only in passing, and they knew him only as “Ya-Ya.” Further, in light of Ms. Williams and Mr. Cosby’s testimony that they had been using drugs the day and night of the murder, including during the time when they interacted with and observed appellant, their ability to accurately identify him was at issue. Accordingly, the fact that Ms. Williams and Mr. Cosby independently selected appellant’s photo as that of “Ya-Ya” was relevant to show that they were able to accurately identify appellant.
Moreover, we disagree with appellant regarding the potential prejudice of the photo. To be sure, in Arca v. State, 71 Md.App. 102, 104, 106,
Here, by contrast, appellant’s photo displayed in the arrays was not “obviously” a mug shot. Rather, the photo was a head shot of appellant, taken from a similar perspective as the other photos in the array, in which all that was visible was appellant’s face and neck area. Appellant’s photograph was not obviously a mug shot. The circuit court properly exercised its discretion in admitting the photo arrays as relevant evidence that did not pose a risk of unfair prejudice to appellant.
B.
Ms. Merritt’s Testimony
Prior to trial, the court addressed the admissibility of evidence of Ms. Merritt’s understanding of the following question appellant asked Ms. Merritt: “[D]o you want to make some money[?]” The State proffered that Ms. Merritt would testify that she understood that to mean that appellant wanted to commit a robbery, based on her “participation in past robberies with the Defendant.” Defense
The court ruled that the State could elicit Ms. Merritt’s interpretation of Mr. Wagner’s question, but not the basis for her interpretation. The court reasoned that the “interpretive statement” was “relevant, intrinsic evidence of the crime of conspiracy,” and “the probative value of this outweighs any unfair prejudice.”
At trial, Ms. Merritt testified that, when she and appellant left their apartment the day of the robbery, appellant said he “wanted some money.” Ms. Merritt understood appellant to mean that he “wanted to rob somebody.”
Appellant argues on appeal that the court abused its discretion in admitting this evidence because it permitted Ms. Merritt “to suggest that she knew [ajppellant to have committed other robberies.” The State disagrees, arguing that this evidence did not constitute other crimes evidence, and, in any event, it was relevant to the crime of conspiracy. Finally, the State contends, “even assuming the testimony was admitted in error, the error is harmless beyond a reasonable doubt because it was merely cumulative to other evidence to the same effect.”
We agree that the evidence was not other crimes evidence, but rather, it was admissible to show agreement between appellant and Ms. Merritt, a critical element to the charge of conspiracy. See Mitchell v. State,
C.
Evidence of Drug Use
Appellant next argues that the circuit court erred in allowing testimony that appellant used drugs following Mr. Pitcairn’s robbery and murder.
The State contends that the circuit court properly exercised its discretion in admitting evidence that appellant “shared in the proceeds of the robbery.” It asserts that the evidence was properly admitted as: (1) evidence intrinsic to the crime of robbery and probative of the crime itself; and (2) evidence of motive.
In arguing that evidence of appellant’s post-crime drug use was inadmissible other crimes evidence, appellant ignores the first basis for the court’s ruling, that the evidence was “intrinsic or relevant to the actual crime itself’ and “probative of the crime itself.” The court explained:
[The evidence] shows [appellant’s] connection to the crime as he had a connection to the proceeds and what was purchased with the proceeds. And that he, immediately after the proceeds were converted to drugs, that he was able to take the drugs, and also shows a relationship with Mr. Cosby and could complete the picture of the post-crime activity and [appellant’]s relation with Mr. Cosby.
And therefore, I find that again its probative value under
Rule 5-403 outweighs its unfair prejudice to [appellant]. Alternatively, the court found that the evidence was admissible as other crimes evidence because it was probative of motive, it could be “proven by clear and convincing evidence,” and “the probative value outweighs any unfair prejudice to [appellant].”
We agree with the court that the evidence was admissible on either ground. Initially, the evidence was intrinsic to the crimes charged. See Silver v. State,
Alternatively, the circuit court properly admitted the testimony pursuant to an “other crimes” analysis. Rule 5-404(b) provides as follows:
(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, 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.
Pursuant to this Rule, “[propensity evidence, or evidence suggesting that because the defendant is a person of criminal character it is more probable that he committed the crime for which he is on trial, is not admissible into evidence.” Hurst v. State,
To determine the admissibility of other crimes evidence, the court must engage in a three-step analysis. Id. (citing State v. Faulkner,
After determining whether the contested evidence falls within an exception
If that requirement is met, the trial court then must weigh the necessity for and probative value of the other crimes evidence against any undue prejudice likely to result from its admission. Id. at 167-68,
Here, the circuit court properly determined that the evidence of appellant’s post-crime drug use was admissible to show appellant’s motive for robbing the victim, i.e., to obtain cash and drugs. Moreover, in light of the serious nature of the charges against appellant, the court properly determinеd that evidence that he used a small amount of drugs was not unfairly prejudicial in light of its probative value in connecting appellant to the chain of events that occurred following the crime.
D.
Mistrial
On direct examination of Mr. Cosby, the prosecutor asked Mr. Cosby whether he knew how long Ms. Merritt and appellant were a couple. Mr. Cosby replied: “No, sir. I knew he was locked up and he came home and they introduced ....” At that point, defense counsel objected and moved for a mistrial. The court stated that Mr. Cosby’s statement about appellant being “locked up” was “absolutely quick,” noting: “I have to say myself I didn’t quite catch it.” The State argued that it was not clear how Mr. Cosby’s statement would prejudice appellant, as “[w]e don’t know why he was locked up, when he was locked up or anything having to do [with] that.” Defense counsel declined to have the court strike Mr. Cosby’s statement, arguing that striking the testimony would “place undue emphasis on it,” and he declined an instruction to the jury not to consider the testimony based on his “fear it highlights” the testimony. The court, after listening to the testimony again, and considering the issue overnight, denied the motion for mistrial.
Appellant argues that the court abused its discretion in denying his motion. He candidly acknowledges that this Court previously has upheld a trial court’s ruling
Appellant contends, however, that this case is distinguishable because the reference here was prejudicial given the other prior bad act evidence elicitеd. He argues that Mr. Cosby’s remark followed Ms. Merritt’s “suggestion] that she and [appellant] had a history of committing robberies,” and the evidence that Ms. Williams “identified [appellant] from his mug shot in a photo array.” He asserts that the jury “only had to put two and two together to infer that the three references were related and that [appellant] was not facing a robbery charge for the first time.” Accordingly, he contends that there was no way to eliminate the prejudice from Mr. Cosby’s statement “short of granting a mistrial.”
The State asserts that the court’s ruling was correct as a matter of law, and that appellant “has failed to demonstrate that he suffered the substantial prejudice necessary to warrant the extraordinary remedy of a mistrial.” It further argues that appellant’s contention that Mr. Cosby’s remark was highly prejudicial when combined with Ms. Merritt’s testimony and with Ms. Williams’ identification is not properly before this Court, as it was not made before the circuit court, nor was it the basis for the circuit court’s ruling.
Initially, we agree with the State that appellant’s contention that a mistrial was required because the evidence as a whole gave the inference that appellant was “not facing a robbery charge for the first time” is not preserved for our review because it was not raised below. See Md. Rule 8-131(a) (“Ordinarily, the appellate court will not decide [an] issue unless it plainly appears by the record to have been raised in or decided by the trial court.”).
A mistrial “is an extraordinary act which should only be granted if necessary to serve the ends of justice.’ ” Cooley v. State,
As indicated, this Court previously rejected the argument that a mistrial is required based on testimony that a defendant had been “locked up.” See Mitchell,
In Turner,
Similarly, here, the bald statement was isolated, unsolicited and unlikely to cause significant prejudice. The circuit court did not abuse its discretion in declining to employ the extraordinary remedy of the declaration of a mistrial based on this statement.
III.
Appellant Shouting Ms. Merritt’s Name During Custody
Appellant’s next contention is based on the admissibility of Ms. Merritt’s testimony regarding her statement to the police. As indicated, she testified that, when she was taken into custody, she initially gave a statement that she and appellant were at home all day, and that Mr. Cosby had come to the apartment with a credit card around 11:00 p.m. Ms. Merritt later initiated further contact with the detectives because she “wanted the truth to get out.” On the way tо the interview room, Ms. Merritt passed appellant’s cell. In the interview room, she began to give a second statement to the police, but she stopped when she heard appellant shouting her name from his holding cell. Ms. Merritt testified that, after hearing appellant, she “felt that I was doing him wrong, so I told the police that I didn’t want to cooperate,” and she ended the interview.
Appellant contends that the circuit court “erred in admitting evidence that [he] called out Ms. Merritt’s name while he was in custody,” asserting that the evidence was “too ambiguous” to be relevant and was “unfairly prejudicial.” Moreover, he contends that, “to the extent that the evidence had some probative value, it also brought with it a high risk of unfair prejudice to [him] in that the jury was likely to infer that [he] wanted Ms. Merritt to keep quiet as he had done.” He argues that, to counteract that prejudice, the court should have allowed him to introduce his taped statement given to police before he called out Ms. Merritt’s name, based on “the doctrine of completeness and fundamental fairness.”
A.
Evidence of Shouting
As indicated, evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Md. Rule 5-401. “Relevant evidence may be excluded, however, if it is unfairly prejudicial, confusing to the fact finder, or a waste of time.” Decker v. State,
“It is well established in Maryland that, ‘[i]f relevant, circumstantial evidence regarding a defendant’s conduct may be admissible under Md. Rule 5-403, not as conclusive evidence of guilt, but as a circumstance tending to show a consciousness of guilt.’ ” Decker,
Here, a reasonable fact finder could infer that, when appellant saw Ms. Merritt return to the interview room for the second time, he yelled Ms. Merritt’s name in an effort to stop her from making further statements to the police regarding Mr. Pitcairn’s robbery and murder.
Further, the admission of Ms. Merritt’s testimony did not unfairly prejudice appellant. Appellant appears to argue that, because evidence was admitted regarding his statement to Ms. Merritt, the jury would unfairly infer that this was the only statement he made while he was in custody, i.e., that he remained silent, which was incorrect. We are not persuaded. There was no error in admitting this evidence.
B.
Admissibility of Appellant’s Statement
We similarly are not persuaded that the court erred in declining to admit into evidence appellant’s exculpatory statement to the police, which he made prior to yelling Ms. Merritt’s name. The general rule is that a defendant is not entitled to admit an exculpatory statement. Conyers v. State,
In any event, the doctrine of verbal completeness does not apply here. That doctrine provides that, “[w]hen part or all of a writing or recorded statement is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.” Md. Rule 5-106. The doctrine of completeness “allows a party to respond to the admission, by an opponent, of part of a writing or conversation, by admitting the remainder of that writing or conversation.” Conyers,
Nor should the exculpatory statement have been admitted as a matter of fundamental fairness, which applies when reliable evidence is excluded due to “arbitrary” state evidentiary rules. See Holmes v. South Carolina, 547 U.S. 319, 326,
IV.
Cross-Examination on Witness Eligibility for Parole
During defense counsel’s cross-examination of Ms. Merritt regarding her plea agreement with the State, the following colloquy occurred:
[DEFENSE COUNSEL]: So, if you testify consistently with the State’s version of events, you will receive a jail sentence of 15 years; is that correct?
[MS. MERRITT]: Yes.
[DEFENSE COUNSEL]: So—and you are aware that on a 15 year jail sentence you will be eligible for parole after 7 and a half—
The court then sustained the State’s objection.
On appeal, appellant contends that the circuit court erred in restricting his ability to cross-examine Ms. Merritt regarding her eligibility for parole after serving half of the sentence called for by the plea agreement. He argues that the court’s restriction on his cross-examination of Ms. Merritt was prejudicial, reversible error.
The State contends that the court “propеrly excluded evidence that was only marginally probative to impeach [Ms.] Merritt and that strayed into a collateral matter that would have confused the jury.” It further argues that appellant’s question was improper because it was not something within Ms. Merritt’s personal knowledge.
“The Confrontation Clause of the Sixth Amendment of the United States Constitution and Article 21 of the Maryland Declaration of Rights guarantee a criminal defendant the right to confront the witnesses against him.” Martinez v. State,
“ ‘Managing the scope of cross-examination is a matter that falls within the sound discretion of the trial court.’ ” Parker v. State,
In Coleman v. State,
Similarly, here, Ms. Merritt’s motive to lie was extensively explored. Dеfense counsel asked Ms. Merritt whether she realized that, if she testified “consistently with the State’s version of events,” the charges of murder and conspiracy to commit murder would be nol prossed. Counsel
V.
Hearsay
Appellant’s next contention involves the testimony of Detective Raymond Hunter, who showed the photo arrays containing appellant’s photo to Ms. Williams and Mr. Cosby. Detective Hunter testified regarding the process by which he presented the arrays to Ms. Williams and Mr. Cosby. With respect to Ms. Williams, after Detective Hunter showed her the photo array, he asked her to initial the array sheet, sign it, and in the “comment” section, state in her own words why she identified the person she selected. Ms. Williams wrote: “Y[a]y[a] brag to me and my boyfriend Kevin Cosby how he terrible beat up the guy and that he rob him.”
Detective Hunter repeated the same process with Mr. Cosby. He explained, however, that nothing was written on the back of the photo array because, when he asked Mr. Cosby to “in his own words place who this individual was and what part did they have in this particular incident now being investigated,” Mr. Cosby answered that he “couldn’t read and write.” The comments section of Mr. Cosby’s photographic array sheet is blank.
Appellant argues that the circuit court erred in admitting Detective Hunter’s testimony that Mr. Cosby told the detective that he could not read and write, asserting that this testimony was inadmissible hearsay. He contends that this testimony was prejudicial because the State’s theory was that appellant wrote the zip code for the credit card on the lottery ticket recovered because Mr. Cosby could not read and write.
The State argues that the court properly admitted Detective Hunter’s statement because it was not admitted for the truth of the matter asserted, and therefore, it was not hearsay. It further assets that, “even if the testimony was inadmissible hearsay, the error in admitting it was harmless because whether [appellant] or Cosby wrote the number on the lottery ticket was not a significant issue at trial, if it was an issue at all.”
A ruling involving the admission of hearsay ordinarily is an issue of law that we review de novo. In re Matthew S.,
Here it is clear that Detective Hunter’s testimony was not offered to prove the
Moreover, appellant does not provide any citation to the record to support his factual assertion that the State’s theory was that Mr. Cosby’s inability to write made clear that appellant wrote the zip code on the lottery ticket. See Pulte Home Corp. v. Parex, Inc.,
VI.
Jury Instructions
Appellant’s next contention involves the jury instructions regarding flight and concealment of evidence. Appellant initially objected to the State’s request for any such instructions, asserting that, the “evidence is not clear at all” that appellant attempted to flee or conceal himself. Alternatively, he requested that the instructions “be read and applied to [Mr.] Cosby.” The State objected to appellant’s request that the instructions be given with respect to Mr. Cosby, arguing that there was no legal support for modifying the instructions to include “other people ... not charged in this case.”
The circuit court gave the following instructions to the jury:
A person’s flight and/or concealment immediately after the commission of a crime or after being accused of committing a crime is not enough by itself to establish guilt, but it is a fact that may be considered by you as evidence of guilt.
Flight and/or concealment under these circumstances may be motivated by a variety of factors, some of which are fully consistent with innocence. You must first decide whether there is evidence of flight and/or concealment by the Defendant or some other person in this case. If you find, if you decide there is evidence of flight and/or concealment by the Defendant or some other person in this case, you then must decide whether this flight and/or concealment shows a consciousness of guilt. You’ve heard ... evidence that the Defendant and other persons may have concealed or destroyed evidence in this case.
Concealment or destruсtion of evidence is not enough by itself to establish guilt, but may be considered as evidence of guilt. Concealment or destruction of evidence may be motivated again by a variety of factors, some of which are fully consistent with innocence. Youmust first decide whether the Defendant, and/or some other person, or persons concealed or destroyed evidence in this case. And if you find that the Defendant, and/or some other person, or persons concealed or destroyed evidence in this case, then you must decide whether this conduct, that particular conduct, shows a consciousness of guilt.
(Emphasis added). At the conclusion of the instructions, appellant objected to the instructions, and he renewed his request that Mr. Cosby’s name be included in the instructions.
Appellant contends that the court erred in refusing to give the instructions he requested, asserting that his instructions “correctly stated the law, were supported by the evidence, and were not fairly covered by the other instructions.” The State disagrees, asserting that appellant “received more than that to which he was entitled when the trial court modified [the pattern instructions] to include persons in addition to the defendant,” and that the instructions, as modified, were not prejudicial to appellant.
Maryland Rule 4-325(c) provides that the trial court must, upon the request of any party, instruct the jury regarding the applicable law. Tucker v. State,
Here, the circuit court acted within its discretion in declining appellant’s request to modify the jury instructions for flight or concealment or destruction of evidence. The Court of Appeals has noted the distinction between instructions with respect to the “applicable law ” which, upon request and under proper circumstances, are required to be given pursuant to Rule 4-325(c), and instructions regarding facts and inferences of fact, which are “normally not required.” Patterson v. State,
Indeed, we note that MPJI-Cr 3:24 is entitled, “Plight or Concealment of Defendant,” and MPJI-Cr 3:26 twice refers to “the defendant ” concealing or destroying evidence in the case. As the jury is determining the guilt or innocence of the defendant, not a witness, the instructions apply only to the defendant’s conduct, i.e., whether there was proof beyond a reasonable doubt that appellant committed the crimes. As the instructions are not written to include a person other than the
VII.
Shackling of Appellant During the Rendition of the Verdict
Appellant’s final contention involves the court’s decision that he remain in restraints during the rendition of the verdict and the polling of the jury. He asserts that the court abused its discretion in making this decision without first making an individualized determination of need.
The State argues that the court properly exercised its discretion in ordering that appellant remain shackled when the verdict was rendered. In any event, it contends that “there is no evidence that the jury ever saw [appellant’s] restraints, and the trial court observed that they could not be seen,” and therefore, appellant failed to meet his burden of establishing actual prejudice.
A.
Proceedings Below
After the jury reached its verdict, the court stated that appellant would remain shackled for the rendition of the verdict. It instructed appellant “to be seated the whole time the jury is in the room,” with his hands and feet under the table. Appellant’s counsel objected, and when the court asked him to explain the prejudice, counsel stated his concern that, if the jury was not unanimous in its verdict and had “to go back to deliberate,” they already would have seen appellant in shackles. The prosecutor stated that he agreed with defense counsel “out of an abundance of caution.”
The court acknowledged counsels’ concern, but it stated that “there’s going to be a security issue which I have to decide.” After requesting court security to approach the bench,
The jury then entered the courtroom, and the foreperson announced its verdict. Defense counsel requested a polling of the jury, and each of the jurors expressed their agreement with the verdict.
B.
Standard of Review
“The decision as to the method and extent of courtroom security is left to the sound discretion of the trial judge.” Miles v. State,
C.
Analysis
Although a trial court has discretion in maintaining courtroom security, “ ‘as a general rule, an accused has a right to be tried [on the issue of guilty or not guilty] without being shackled, chained, bound, handcuffed, gagged, or otherwise physically restrained.’ ” Lovell v. State,
“Shackling a defendant during the guilt/innocence phase of trial is inherently prejudicial because it highlights the ‘need to separate a defendant from the community at large.’ ” Hunt,
Before exercising its discretion to order a defendant to appear in restraints, the court must make “ ‘an individualized evaluation of both the need for shackling and the potential prejudice therefrom.’ ” Miles,
Appellant contends that the circuit court erred in ordering him to remain shackled when the jury entered the courtroom to read its verdict without first making an individualized determination of the need for such a security measure. We agree, finding Lovell,
In Lovell, the Court of Appeals discussed circumstances that justified shackling at a capital sentencing hearing, such as multiple escape attempts, misconduct by the defendant at trial, and threats by the defendant. Id. In that case, however, the record was devoid of any indication
That same analysis applies here. As in Lovell, the court did not express concern that appellant posed any particular threat, or was potentially at risk to escape. Rather, the court’s rationale for ordering appellant to remain in shackles for the rendition of the verdict was that appellant was charged with murder, explicitly stating a concern “for any defendant, especially certainly ... on a homicide charge with a potential exposure.” Accordingly, the court abused its discretion in determining that requiring appellant to wear shackles for the rendition of the verdict was justified.
As the State notes, however, that is not the end of the inquiry. In reviewing a circuit court’s order requiring a defendant to wear restraints, we must determine whether “the scene presented to jurors,” and what they saw, “was so inherently prejudicial as to pose an unacceptable threat to defendant’s right to a fair trial; if the challenged practice is not found inherently prejudicial and if the defendant fails to show actual prejudice, the inquiry is over.” Bruce v. State,
As indicated, the general rule is that requiring a defendant to wear shackles that are visible to the jury during the guilt or innocence phase of trial is inherently prejudicial. Deck,
With respect to the timing of the shackling here, at least one court has held that, when the shackling occurs after the jury has reached its verdict, but before it is announced in open court, there is no presumption of prejudice. State v. Clark,
That same analysis applies here. We hold that requiring a defendant to wear shackles during the rendering of the jury verdict, after the jury has reached a guilty verdict and the presumption of innocence has been overcome, is not inherently prejudicial. Unless there is some indication in the record that the shackling caused prejudice to the defendant, any error in requiring shackling at this point will be deemed harmless.
A second reason that the shackling was not inherently prejudicial in this case is that the court employed measures to hide the restraints from the view of the jury. Indeed, it specifically stated that court personnel put appellant’s suit coat over the shackles, and the restraints were not visible from the court’s vantage point. Thus, appellant’s claim that his right to a presumption of innocence “was irrevocably damaged by his appearance in handcuffs and leg irons when the jurors entered the courtroom to render their verdict” is belied by the record.
In Bruce,
Other courts have applied this reasoning to the use of shackles, holding that, if shackles are hidden from the view of the jury, their use is not so “inherently prejudicial” to create a ground for reversal. For example, in State v. Johnson,
Similarly, in State v. Madsen,
[I]f the jury cannot see the defendant’s shackles, there can be no prejudice.See, e.g., United States v. Mayes, 158 F.3d 1215 , 1226-27 (11th Cir.1998) (“The restraints in this case were not capable of affecting the jury’s attitude in any way because the district court took great care to ensure that the jury never saw that the appellants were wearing leg irons.”); United States v. Brazel,102 F.3d 1120 , 1158 (11th Cir.1997) (“Defendants, moreover, have not shown a realistic likelihood that they were prejudiced by what was done, the shackles having been screened from view.”).
Id. at 1136 (quoting Moon v. Head,
The court in Madsen noted that the appellant had not alleged or shown support in the record that the shackles were visible to the jury, and the record suggested “the opposite: an apron was placed in front of Madsen’s table to prevent the jury from viewing his leg irons. Moreover, the trial judge indicated that they were not visible and allowed Madsen to be seated prior to the jury’s entrance.” Id. at 1137. Accordingly, the court found no inherent prejudice from the use of the shackles. Accord U.S. v. Baker,
Applying this reasoning to the present case, the shackling that occurred here was not inherently prejudicial. Indeed, the record shows no prejudice. The court made clear on the record that appellant’s suit coat was pulled over the shackles, and the court instructed appellant not to stand to prevent the jury from seeing the leg shackles. The court specifically stated that appellant’s restraints were not visible from the court’s vantage point.
Accordingly, although the trial court abused its discretion in failing to make a proper individualized determination that restraints were warranted, their use here was not inherently prejudicial, and appellant’s claim that his right to a “presumption of innocence” was “irrevocably damaged by his appearance in handcuffs and leg irons” is without merit. Appellant states no claim for relief in this regard.
JUDGMENTS AFFIRMED. COSTS TO BE PAID BY APPELLANT.
Notes
. The court merged for sentencing purposes the conviction for armed robbery with the conviction for felony murder.
. On direct examination, Officer Ege testified that the man walked away. In response to questioning on cross-examination, however, he stated that the man ran.
. Miranda v. Arizona,
. At appellant’s trial, Detective Boris testified that he was not aware "that if you place one object upon another object, it cаn transfer DNA from one object to another.” William Sloane, the Baltimore City Police Department Criminal Technician who processed the evidence obtained from 2607 Maryland Avenue testified that, by placing the shorts on top of the jersey, Detective Boris had created a risk that trace evidence could be transferred between the items.
. Although Mr. Cosby was Ms. Merritt’s cousin, she grew up in foster care and did not know Mr. Cosby until she was older, and she was not close to him or to Ms. Williams.
. Their testimony was largely consistent. Neither Ms. Williams nor Mr. Cosby were charged with any crime in connection with the case. At the time of trial, however, Mr. Cosby was incarcerated on an assault charge.
. Ms. Williams testified that the argument arose after she told appellant to put Mr. Pitcairn's driver’s license in a mailbox. She wanted him to do so because, not realizing that Mr. Pitcairn was dead, and she felt that "people need their ID, it’s important.” Appellant told Mr. Cosby to "tell your girl shut-up,” and then Ms. Williams and Mr. Cosby began arguing about Ms. Williams "running [her] mouth.” Mr. Cosby, by contrast, testified that he and Ms. Williams left the apartment to try to buy more drugs, and their argument as they were leaving was because Ms. Williams wanted him to give her some of the money. Ms. Williams yelled that she was going to tell the police that Mr. Cosby had Mr. Pitcairn’s credit card, and Mr. Cosby said: "[G]irl, be quiet, I’m going to give you some money.”
. In support, it cites the following voir dire questions:
Does any member of the panel hold such strong feelings regarding robberies or homicides, particularly those involving the use of a knife, that it would be difficult for you to fairly and impartially weigh the facts of the trial where such crimes have been alleged?
[I]s there anything, including any philosophical, moral, religious, or other beliefs which would affect your ability to render a fair and impartial verdict in this case?
. We note that the Court of Appeals recently granted a Petition for Writ of Certiorari raising the question whether the trial court erred in refusing to ask in voir dire whether any member of the jury panel, or any member’s family, friend or acquaintance, had been the victim of a crime. Pearson v. State, No. 2483, Sept. Term, 2010 (filed Mar. 5, 2013), cert. granted, No. 49, Sept. Term, 2013 (June 20, 2013).
. Prior to trial, the State moved to admit evidence that appellant was a drug user, and that, after the robbery and murder, he shared crack cocaine, purchased with cash obtained through the use of Mr. Pitcairn’s credit card, with Mr. Cosby. The court granted the State’s motion in part, excluding evidence pertaining to appellant’s pre-crime drug use, but ordering that evidence of appellant’s post-crime drug use was admissible.
. Appellant does not dispute the court’s finding of clear and convincing evidence of his drug use.
. Although we may exercise our discretion to review an issue for plain error, that is rarely done, see Robinson v. State,
. Here, as indicated, defense counsel declined a curative instruction.
. Defense counsel proffered that, in the statement he gave to the police, appellant stated that he was at home at the time of Mr. Pitcairn’s robbery and murder, and Mr. Cosby came in asking how to use a credit card.
. The evidence indicated that the shouting had this effect on Ms. Merritt; she stopped the interview.
. As indicated, the zip code was needed to use the credit card to purchase fuel at the gas station.
. We note that defense counsel was free to argue in his closing argument, which he did, that Mr. Cosby was the perpetrator and had fled and concealed evidence.
. The record states that the court conferred with "The Clerk," but this appears to be a typographical error.
. One instance in which the record could show prejudice is the scenario voiced by defense counsel here, i.e., the jury advises that it is unable to reach a verdict and, after seeing the defendant in shackles, is sent back for further deliberations.
. Appellant did not voice concern at that point that the jury might be able to see the shackles, nor did he seek a hearing after the verdict to determine whether any of the jurors saw the shackles.