A stray bullet, fired at a fleeing drug buyer who attempted to trick a dealer by paying with fake bills, killed an innocent bystander. Petitioner, Warren Jerome Yates, was convicted by a jury sitting in the Circuit Court for Baltimore County of second-degree felony murder, distribution of marijuana, and related offenses in connection
The Court of Special Appeals, in a reported opinion, affirmed the judgments of conviction. Yates v. State,
I.
On the night of January 7, 2009, Shirley Worcester was standing outside her home in Middle River, Maryland, when she was fatally wounded by a stray gunshot. Moments earlier, Worcester had stepped outside of her home to take two trash bags to the curb. Worcester’s sister-in law, Linda Fuller, was sitting in a car parked in the driveway talking with Worcester when she heard what sounded like a car backfiring. “I’ve been hit,” Worcester said. Fuller and her husband got out of the vehicle and saw a man, wearing a dark hooded sweatshirt with the hood pulled up over his head, fall in Worcester’s yard around the same time as the gunshots went off. The man ran off between houses, and Worcester’s relatives called 911. Worcester later died from the gunshot wounds.
Police responding to the 911 call stopped a suspicious-looking man, later identified as Petitioner’s co-defendant, Donald Kohler, not far from the scene of the shooting. Police investigation revealed that Kohler, the hooded man who fell in Worcester’s yard and then ran off, was the gunman’s intended target and Worcester was the innocent victim of an errant shot.
The shooting was preceded minutes earlier by a drug transaction between Kohler and Petitioner. It developed at trial that Kohler had contacted Christopher Jagd and Justin Wimbush seeking to buy four pounds of marijuana. The men in turn contacted Petitioner, who agreed to sell Kohler the drugs. Kohler, Petitioner, and their associates met at another individual’s home to conduct the transaction. Petitioner was accompanied by William Griffin. Petitioner presented the marijuana to Kohler and received from him a bag that appeared to contain the purchase money. Immediately after the exchange, Kohler ran from the house, and Petitioner, after glancing in the bag and learning it contained fake currency, chased after Kohler carrying a handgun. Investigators deduced that, during the chase, Petitioner fired at Kohler, missed him, and the stray bullet struck Worcester, wounding her fatally.
Petitioner and Kohler were jointly tried before a jury for their roles in the drug transaction and subsequent shooting. According to several witnesses, Kohler had come to the drug transaction wearing a hooded sweatshirt and all black clothes, similar to the description given to police of the clothing worn by the man who fell in the yard and ran off between buildings after Worcester was shot. In the vicinity of the shooting, police found two shell casings and a trash bag containing four plastic bags filled with marijuana.
Two of the men present for the drug transaction were called as State’s witnesses and connected Petitioner to the shooting. Christopher Jagd initially testified that he did not see Petitioner fire the gun, but later acknowledged that he remembered
The jury returned a verdict on October 9, 2009. The jury acquitted Petitioner of first-degree murder and found him guilty of second-degree felony murder, use of a handgun during the commission of a felony, use of a handgun during the commission of a violent crime, drug trafficking with a firearm, distribution of marijuana, conspiracy to distribute marijuana, and first-degree assault. For sentencing purposes, the trial court merged distribution of marijuana with second-degree felony murder and merged together the two handgun convictions. For the remaining crimes, the court sentenced Petitioner to a total of ninety-five years’ imprisonment.
Petitioner noted an appeal to the Court of Special Appeals. That court, rejecting Petitioner’s multiple claims of reversible error, affirmed the judgments of conviction. Yates,
Petitioner filed with this Court a writ of certiorari to answer the following questions:
1. Did the Court of Special Appeals err in concluding that the improper admission of hearsay describing Mr. Yates’s alleged confession was harmless error?
2. Did the Court of Special Appeals err in adopting the res gestae theory of second-degree felony murder in sustaining Mr. Yates’s conviction?
3. Did the Court of Special Appeals abuse its discretion in declining to exercise plain error review of a jury instruction solely on the grounds that the instruction was consistent with a Maryland Criminal Pattern Jury Instruction?
We granted the petition, Yates v. State,
II.
On cross-examination of Detective Hinton by Kohler’s defense counsel, Detective Hinton was asked what Jagd had told him Petitioner had said after the shooting.
[Kohler’s Counsel]: And my question to you is this: When you spoke with Mr. Jagd, you discussed with him what it was that he said that [Petitioner] had said to him immediately after the shooting as they were running into the house. I want to call your attention to that discussion that you had with him. Can you tell us what it is that Mr. Jagd told you that [Petitioner] said to him?
[Hinton]: He said, I popped that nigga.
The trial court allowed the statement into evidence, over Petitioner’s objection. Petitioner moved for a mistrial, and the trial court denied the motion.
The State conceded before the Court of Special Appeals (and repeats that concession here) that Detective Hinton’s testimony, repeating what Jagd told him that Petitioner said to Jagd, was inadmissible
Petitioner challenges that holding, arguing that the Court of Special Appeals misapplied the Dorsey test by not considering the impact the hearsay evidence had on the jury and by instead improperly examining whether the State relied on the hearsay statement in its closing argument. Additionally, Petitioner contends that the hearsay statement was not cumulative of other evidence offered at trial. The State disagrees, asserting that the Court of Special Appeals correctly held that Petitioner is not entitled to reversal on the basis of the trial court’s evidentiary error. We agree with the State.
“This Court has long approved the proposition that we will not find reversible error on appeal when objectionable testimony is admitted if the essential contents of that objectionable testimony have already been established and presented to the jury without objection through the prior testimony of other witnesses.” Grandison v. State,
We agree with our colleagues on the Court of Special Appeals that Detective Hinton’s statement is cumulative of other evidence to which Petitioner did not offer an objection, and we affirm the intermediate appellate court on that ground.
[Kohler’s Counsel]: Do you remember what [Petitioner] said to you?
[Jagd]: Nah. I said something to him. I said, did you shoot him? I don’t remember exactly what he said. I think he said, I don’t know if I got him, or something around that, or I think I got him. I’m not sure.
[Kohler’s Counsel]: Are those his exact words?
[Jagd]: No, sir.
[Kohler’s Counsel]: Do you remember saying to Detective Hinton that [Petitioner] said to you, quote, I popped that nigger?
[Jagd]: No, he didn’t say that.
[Kohler’s Counsel]: He didn’t say that. You didn’t say that to Detective Hinton?
[Jagd]: I might have.
Petitioner did not object to this exchange.
Griffin similarly testified, without objection from Petitioner, that Petitioner admitted to firing a gun. Griffin testified, “I asked him what happened with the gunshots. He said he fired the gun.” Griffin later added, “[Petitioner] just said he don’t know what happened or if he hit anybody or nothing.”
Petitioner argues that these additional statements about Petitioner’s firing a gun are not cumulative because they are not of the same quality as the statement relayed by Detective Hinton. Petitioner cites State v. Simms,
We disagree. The substance of Detective Hinton’s statement is that Petitioner told Jagd that he fired a gun and shot someone. Jagd separately testified that Petitioner said “I don’t know if I got him” or “I think I got him,” even while he denied (to some extent) making the provocative statement to Detective Hinton. In addition, Jagd testified that he saw Petitioner run out of the house with a gun and saw Petitioner discharge it. Griffin testified similarly that Petitioner fired the gun and said to Griffin that he, Petitioner, was not sure if he hit anyone. These statements, although using different words, reach the same conclusion: that Petitioner fired a gun shortly after chasing Kohler out of the house.
Petitioner places too great an emphasis on the fact that the challenged hearsay statement came through Detective Hinton. It is conceivable that the jury found Detective Hinton more credible than Jagd and concluded that Detective Hinton correctly recalled what Jagd had said. But in order to convict Petitioner, the jury would have had to believe not only that Detective Hinton was correct in remembering Jagd’s statement to him, but that Jagd himself was credible in relating to the detective what Petitioner told him. For the jury to believe that the statement was credible it would need to believe both Detective Hinton and Jagd. Ultimately, though, the jury would had to have focused on the credibility of Jagd and Griffin in connection with their statements implicating Petitioner. There were three such statements: two from Jagd (one relayed through Detective Hinton) and one from Griffin. Jagd testified that Petitioner ran out of the house with a gun and fired in the direction of Kohler. Both Jagd and Griffin testified that Petitioner admitted that he fired his gun and thought he hit something or was unsure if he hit something. In the words of Grandison, this testimony establishes the “essential contents” of the hearsay from Jagd that Detective Hinton repeated to the jury.
We agree with the Court of Special Appeals that the admission of the hearsay evidence did not ultimately affect the jury’s verdict given the cumulative nature of the similar statements offered at trial. We therefore hold that the erroneous admission of the hearsay statement from Detective Hinton does not entitle Petitioner to a new trial.
III.
Petitioner argues that the evidence was insufficient to convict him of second-degree felony murder because the State failed to prove all of the elements of the offense, specifically that the killing occurred during the perpetration of the felony. Petitioner argues that the predicate felony — distribution of marijuana — had concluded before the murder was committed and therefore cannot serve as the basis for a felony murder conviction. In that regard, Petitioner takes issue with the Court of Special Appeals’s statement that “a killing that follows a felony constitutes felony murder if the homicide and the felony were parts of one continuous transaction, and they were closely related in time, place, and causal relation.” According
We first dispose of Petitioner’s concern with the Court of Special Appeals’s reference to the phrase res gestae in the course of surveying the law in other states on the subject of felony murder,
Felony murder is defined under Maryland common law as “a criminal homicide committed in the perpetration of or in the attempted perpetration of a dangerous to life felony.” Roary v. State,
We have said that “there must be some nexus between the killing and the underlying felony. Mere coincidence between the underlying felony and the killing is not enough; the conduct causing death must be in furtherance of the design to commit the felony.” Watkins v. State,
To the contrary, we have recognized that the crime may continue “beyond completion of the core event.” Sydnor v. State,
It is certainly true that, for some purposes [including felony murder], a robbery (and other crimes as well) is treated as continuing beyond completion of the core event — the forcible taking and asportation of property in the case of robbery, the setting of a fire in the case of arson, [or] the sexual attack in the case of rape or other sexual offenses— to include the felon’s escape to a point of safety.
Id. at 217-18,
We are not alone in this view. In Ware v. State,
Other courts hold similarly. See State v. Berry,
For all these reasons, we hold that a killing constitutes felony murder when the homicide and the felony are part of a continuous transaction and are closely related in time, place, and causal relation. Applying the law to the facts here, we hold that Worcester’s killing occurred during the commission of the underlying felony of distribution of marijuana. Petitioner came to the drug deal armed, presumably prepared to use violence should it become necessary in the course of the exchange. When Petitioner learned that he had been conned by Kohler and given fake money, he immediately gave chase, brandishing his gun. The jury reasonably could infer from Petitioner’s actions that he did not consider the deal complete, and when he ran out of the house he intended, at the very least, to confront Kohler. Shortly after the deal went sour, Petitioner was observed pointing his gun and firing it; gunshots were heard by others who were present for the drug deal. Two of Petitioner’s confederates in the deal testified that Petitioner admitted to having fired his gun and that he might have shot Kohler. Had Kohler been shot immediately by Petitioner, instead of being able to flee the house, the link between the two events would be undeniable. The fact that Kohler was able to flee the house and run a short distance before Petitioner shot at him does not change the continuous nature of the event. This was not a shooting unconnected to the drug transaction, or revenge taken days after Kohler’s ruse was discovered. It was immediate, directly related to the distribution of marijuana, and so closely connected to that felony that the shooting became a part of it.
The Court of Special Appeals did not err in affirming Petitioner’s conviction for second-degree felony murder.
IV.
Petitioner’s final argument rests on the trial court’s instruction on second-degree
In order to convict the Defendants Warren Jerome Yates and Donald S. Kohler of second degree felony murder, the State must prove that the Defendant or another participating in the crime with the Defendant committed or attempted to commit the crime of distribution of marijuana, which is a felony. That the way in which the distribution of marijuana was committed or attempted under all of the circumstances created a reasonably foreseeable risk of death or a serious physical injury likely to result in death, and that as a result of the way in which the distribution of marijuana was committed or attempted, Shirley Elizabeth Worcester was killed.
Petitioner argues that the trial court erred by not instructing the jury that, in order to convict Petitioner of second-degree felony murder, the jury must find that the killing occurred “during the commission or attempted commission” of the underlying felony, distribution of marijuana. Petitioner concedes that he did not raise this objection at trial. He argues that the Court of Special Appeals abused its discretion by not subjecting the instruction to plain error review. He takes issue with that Court’s conclusion that the use of Maryland Criminal Pattern Jury Instructions “weighs heavily” against plain error review.
The Court of Special Appeals did not abuse its discretion. In general, a party must object to the failure to give a particular instruction promptly after the instructions are delivered, stating the grounds for the objection. Maryland Rule 4-325(e). This rule of contemporaneous objection applies even to errors of constitutional dimension. Savoy v. State,
Plain error review is reserved for errors that are “compelling, extraordinary, exceptional or fundamental to assure the defendant a fair trial.” Savoy,
“There is no fixed formula for the determination of when discretion should be exercised, and there are no bright line rules to conclude that discretion has been abused.” Garrett v. State,
[W]e do not reverse the Court of Special Appeals for the exercise of its discretion unless it has clearly been abused. While this Court retains its own independentdiscretion to hear unpreserved arguments, that does not mean we review the discretionary functions of the lower appellate court de novo. To the contrary, we respect the judgment of the Court of Special Appeals in determining whether it needed to consider the issue for the proper execution of justice, and unless upon our review that court abused its discretion under the Rule, we will not substitute our judgment for theirs.
Id. (internal citation omitted) (quoting Jones, 379 Md. at 715,
The Court of Special Appeals did not decline review in a cursory fashion. In deciding whether to exercise its discretion, the Court pointed out that the trial court used a pattern jury instruction; cited past appellate decisions approving of the use of pattern instructions; noted that Petitioner could not cite any Maryland cases in which appellate courts have held that a trial court committed plain error in “giving, without objection, a pattern jury instruction”; and observed that appellate courts outside of Maryland have considered the use of pattern instructions in deciding whether to conduct a plain error review. Yates,
The plain error standard gives a reviewing court a great deal of latitude to decide whether to exercise its discretion. The Court of Special Appeals gave appropriate weight to the use of pattern jury instructions and noted the lack of any authority to support Petitioner’s claim of error. There is nothing to suggest that the Court of Special Appeals abused its discretion by declining to conduct a plain error review.
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY PETITIONER.
Notes
. The challenged testimony is actually "hearsay within hearsay,” as Detective Hinton relayed a statement that Jagd made to him relaying a statement that Petitioner originally made to Jagd. Under Maryland Rule 5-805, "If one or more hearsay statements are contained within another hearsay statement, each must fall within an exception to the hearsay rule in order not to be excluded by that rule.”
. In Dorsey v. State,
[W]hen an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed “harmless" and a reversal is mandated. Such reviewing court must thus be satisfied that there is no reasonable possibility that the evidence complained of — whether erroneously admitted or excluded — may have contributed to the rendition of the guilty verdict.
. We therefore have no need to address Petitioner’s claim that the Court of Special Appeals misapplied the Dorsey standard of harmless error.
. The res gestae (meaning "things done") theory "embraces not only the actual facts of the transaction and the circumstances surrounding it, but the matters immediately antecedent to and having a direct causal connection with it, as well as acts immediately following it and so closely connected with it as to form in reality a part of the occurrence.” Rollin M. Perkins & Ronald N. Boyce, Criminal Law 68-69 (3d ed.1982) (internal citations omitted). As Professor Wayne LaFave notes in his treatise on Criminal Law, "something more is required than a mere coincidence of time and place.” Wayne LaFave, Criminal Law 797 (5th ed.2010). Felony murder would not include, for instance, a bank customer who, unaware of a robbery taking place, suffers a fatal heart attack. Id. The factors frequently stressed in res gestae, cases are that the felony and killing be “closely connected in point of time, place and causal relation.” Id. at 799 n. 95.
. This docs not disturb our holding in State v. Allen,
. Additionally, Petitioner asks us to undertake a plain error analysis and, in doing so, recognize and correct the intermediate appellate court's error. Petitioner’s question before this Court was framed narrowly as to whether the intermediate appellate court abused its discretion in declining to conduct plain error review of the jury instructions. Given the narrow scope of the question, we decline Petitioner's request in his brief to conduct plain error review on our own.