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Opinions – Maryland Court of Appeals: 3/21/11

Criminal Law

Rights under Confrontation Clause

BOTTOM LINE: A miscellaneous agreement in which the co-defendant’s sentence would be capped in return for dropping his jury trial demand was a violation of the defendant’s rights under Confrontation Clause.

CASE: Morris v. State, No. 34, Sept. Term, 2010 (filed Feb. 23, 2011) (Judges Bell, HARRELL, Battaglia, Greene, Murphy, Adkins & Barbera). RecordFax No. 11-0223-20, 37 pages.

FACTS: Stewart Williams and a compatriot walked into The Wine Underground, a store in Baltimore City. In the midst of unpacking boxes, Richard Seleany, a store employee, looked up and saw them. Noticing that at least one of these men was wearing a hood and a mask, he assumed a robbery was in the offing. Seleany charged the would-be robbers and a fight ensued. As the brawl moved out of the store and onto the sidewalk, Williams drew a handgun and fired a single shot, narrowly missing Seleany’s head. The assailants then turned and fled. As they ran, Williams fired a second shot at the store employee, missing him again.

Officer Raul Alvarez, sitting in his marked police cruiser at the corner of Millbrook Road and Cold Spring Lane and hearing a dispatch concerning an attempted robbery, saw a white sedan matching the description and traveling east on Cold Spring Lane with two black male occupants. Alvarez followed the vehicle and observed what he believed was the top of a third person’s head in the back seat. Alvarez activated his emergency lights.

Nearby, Officers Steven Weiss and Kenneth Scott were driving in their unmarked police car. They quickly joined the pursuit. The two police cars tracked the white sedan to Willow Avenue, a residential area. The front passenger, later identified as Williams, ran into a house number 609. Franklin Morris was the driver of the white sedan.

Morris and Williams were taken into custody and interviewed separately by Detectives Byron Conaway and Robert Jackson. Williams provided written and taped statements in which admitted that he went to the store to rob it, but that he was alone when he entered the store.

A search warrant was obtained for 609 Willow Avenue, whereupon Detective Conaway discovered a handgun in the basement. A ballistics examination revealed that a shell casing, recovered from the scene of the attempted robbery, had been fired from the weapon. A subsequent search of the vehicle yielded a piece of black cloth, along with other black items of clothing.

Morris denied any involvement with the attempted armed robbery. At trial, he testified that, over the course of a fifteen-year friendship, Williams had telephoned him often and asked for rides. On the morning of the attempted robbery, Williams assertedly phoned Morris around 11:30 a.m., asking to be picked up at the corner of Falls Road and Coldspring Lane. When Morris and his white sedan arrived at that location, Williams was not there, so Morris called Williams’ cell phone number. According to Morris, when Williams and another man arrived, Williams was not “out of breath[.]” Williams asked Morris to drive him home.

On the theory that Williams was the gunman/robber and Morris the getaway driver, the State charged both men with various offenses and sought a joint trial in the circuit court. Williams wanted a bench trial, while Morris wanted a jury trial.

The trial judge proposed that, in exchange for an agreed upon sentence of seventeen years, with all but ten suspended, Williams would stand trial by jury along with Morris. During the trial itself, however, Williams and his counsel simply would be there and contribute nothing to it. Nonetheless, he would retain the right to argue a motion for judgment of acquittal.

In later pre-trial exchanges, Williams, the prosecutor, and the judge added additional conditions to the “miscellaneous agreement” — Williams would waive peremptory jury challenges, but retain his right to cross-examine witnesses. Moreover, if the jury found Williams guilty, the State would drop additional charges against Williams, stemming from an unrelated incident; otherwise, the State would be permitted to proceed on those separate charges.

After a brief recess, Williams decided to take the court’s offer. Morris, however, objected and sought a severance. After another recess, Morris changed his mind and renewed his objection to the State’s intended introduction of Williams’ statements.

The jury found Morris, as a principal in the second degree, guilty of attempted robbery with a dangerous weapon; first-degree assault; transporting a handgun in a vehicle; use of a handgun during a felony or crime of violence; and conspiracy to commit robbery with a dangerous weapon. Thereafter, the trial judge sentenced Morris to twenty years incarceration for first-degree assault and, after merging attempted robbery into first-degree assault, concurrent twenty-year sentences for use of a handgun in a crime of violence and conspiracy. The Court of Special Appeals affirmed.

Morris appealed to the Court of Appeals, which reversed.

LAW: Before the trial court, Morris’ counsel did not rely initially on any particular case, but focused rather on his client’s general confrontation rights. As Crawford v. Washington, 541 U.S. 36 (2004), is grounded in Sixth Amendment confrontation right principles, Morris asserted, at trial, a Crawford complaint.

Although Morris’s trial counsel did not state clearly that he was seeking a severance, he did object to the agreement as beneficial to the State and, presumably, unduly prejudicial to his client. He also stated that he wanted a severance because the State proposed to admit a statement which “connect[s]” Morris more proximately to the crime scene and “actually hurts my client.”

Thus, Morris adequately preserved his claim under Crawford and a claim that severance was proper, in light of an impending Confrontation Clause violation caused by the existence of the “miscellaneous agreement.”

Crawford holds that a defendant is denied his Sixth Amendment right to confront his accusers by the introduction into evidence of an out-of-court “testimonial statement” made by a declarant who is unavailable for cross-examination. Crawford, 541 U.S. at 69. However, that this was not a bona fide trial, at least not as that term has been defined by the Constitution, the Declaration of Rights, and the Maryland Rules.

In arguing that the “miscellaneous agreement” was most akin to a sentencing cap, the State relied upon Smith v. State, 375 Md. 365 (2003) and Ogonowski v. State, 87 Md.App. 173 519 (1991). However, in both of those cases, the defendants retained all of their rights, aside from the right to a jury trial. The ensuing bench trials were actual trials.

In Sutton v. State, 289 Md. 359 (1981), the parties agreed to proceed on an agreed statement of facts, and, as a result, the defendant “waiv[ed] her right to a jury trial, to confront witnesses, [and] to testify.” Id. at 365. She also waived her right, however, to “deny the allegations of assault” and “was told that the trial court had indicated that she would be placed on probation.” Id.

As a result, the State presented an agreed statement of facts that delineated conduct that showed an apparent assault and that raised no defense. At the close of the State’s case, the defendant, merely for the record, made a motion for judgment of acquittal that was denied. Thereafter, she presented no evidence and renewed her motion for judgment of acquittal that was again denied. Id. at 366.

The Court of Appeals acknowledged that “[t]rying a case on an agreed statement of facts ordinarily does not convert a not guilty plea into a guilty plea.” Id. Based on “the totality of the circumstances, and in particular, the facts that the [defendant’s] plea was entered at the direction of the trial court and that she was aware that she would be placed on probation,” the Court held that “the proceeding was not in any sense a trial and offered no reasonable chance that there would be an acquittal. Under these particular circumstances, the [defendant’s] plea was the functional equivalent of a guilty plea.” Id.

Williams waived his right to a jury trial, to confront witnesses, to testify, and to make opening and closing arguments. Moreover, he also waived his right to deny the State’s allegations and, in fact, was told what sentence to expect. He, of course, preserved his right to move for judgment of acquittal, should the State fail unexpectedly to present a prima facie case against him. Moreover, although nominally reserving his right to cross-examination, he engaged in no such exercise.

In view of the totality of the circumstances, the proceeding was not a trial as to Williams’ guilt or innocence. Had the co-defendants been tried separately, the State could not have used Williams’ statement against Morris, pursuant to Crawford, unless (1) Morris had enjoyed an opportunity to cross-examine Williams, or (2) the State had obtained a final guilty verdict or plea from Williams, thereby extinguishing his Fifth Amendment right against self-incrimination.

To introduce directly the Williams statement/confession against Morris, the State could have tried Williams first, or it could have refused to go along with the plea agreement and, thereby, force a bona fide joint trial. It could not proceed, however, as it did and, ultimately, circumvent Crawford.

“[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.” Dorsey v. State, 276 Md. 638, 659(1976).

The miscellaneous agreement resembled a guilty plea agreement to which the State implicitly or explicitly consented. Furthermore, the taped statement presented potentially conflicting evidence as to where Williams got into the vehicle vis a vis the crime scene or a more remote location. Therefore, the violation of Morris’ Confrontation Clause rights was not harmless error.

Accordingly, the judgment of the Court of Special Appeals was reversed.

COMMENTARY: The trial court admitted into evidence certain testimony by Detective Conaway about items he recovered from Morris’s vehicle. The trial judge also questioned the detective in order to clarify why the detective took certain items from the white sedan, while leaving others.

A relevant extrajudicial statement is generally admissible as non-hearsay “when it is offered for the purpose of showing that a person relied on and acted upon the statement and is not introduced for the purpose of showing that the facts asserted in the statement are true.” Graves v. State, 334 Md. 30, 38 (1994). However, extrajudicial statements which explain police conduct, but nonetheless directly implicate the defendants, are excluded typically as overly prejudicial.

The detective’s testimony illuminated why the detective collected certain items of potential evidence and not others, and the trial court’s questioning revealed successfully that the detective’s statement was not offered for its truth.

PRACTICE TIPS: For joinder to be proper, a trial court first asks whether “the evidence offered [is] mutually admissible as to each defendant, Osburn v. State, 301 Md. 250 (1984); if not, the trial court then considers the “possibility of significant damage[, or prejudice,] … by evidence … admissible [only] against a co[-]defendant,” Eiland v. State, 92 Md.App. 56, 73 (1992). If the evidence is not mutually admissible and prejudices the defendant (against whom it is inadmissible), then severance is proper normally.

Evidence

Alibi witness

BOTTOM LINE: The circuit court was not clearly erroneous in refusing to allow defense witnesses to testify since they were “alibi” witnesses and the defense failed to disclose their names in accordance with the requirements of Rule 4-263(d)(3).

CASE: McLennan v. State, No. 16, Sept. Term, 2009 (filed March 4, 2011) (Judges Bell, Harrell, Battaglia, Greene, MURPHY, Adkins & Barbera). RecordFax No. 11-0304-20, 23 pages.

FACTS: On Nov. 29, 2005, at about 9:00 p.m., a pizza delivery driver was robbed at gunpoint by two men who stole $250, a pizza, and chicken tenders. Officer Thomas Townsend, who responded to the report of the robbery, approached the area of the crime and observed a pick-up truck meeting the description furnished by the victim. He activated his emergency equipment and followed the pick-up truck for about two thirds of a mile. When Officer Townsend stopped the pick-up truck, he placed Omar Nathan McLennan and Pedro Mendez in handcuffs and seated them on the grass to await the arrival of the victim.

Mendez testified that on Nov. 29, 2005, at about 9:00 p.m. he was driving his pick-up truck when he saw McLennan and Darnell Mann, both of whom he knew, beckoning him to stop. They asked him for a ride. When he agreed, they asked him to wait several minutes. When a short time later they entered the pick-up truck, Darnell was holding a pizza box. Both passengers said, “Come on, let’s go.” As Mendez then drove down the street, he saw police lights behind him. As he started to slow down, Darnell jumped out of the truck with the pizza box. When the pick-up truck was finally pulled over, he and McLennan were placed under arrest.

McLennan testified that his mother dropped him off on Overheart Lane, near the crime scene, so that he could visit a friend, Bradley Thomas. When McLennan left Thomas’ house, he ran into a friend, Robert Jones, and asked him for a ride home. When Jones was unable to help him, McLennan proceeded to the Quiet Hours apartment complex and knocked on the door of a friend. When no one answered the door, McLennan walked back toward Overheart Lane. At that point a pick-up truck pulled over to where McLennan was standing. He recognized the driver as Mendez and asked him for a ride. McLennan entered the rear seat. The front seat was occupied by Ashley Davis.

According to McLennan, when a police cruiser pulled them over, Davis, who was wearing a black and red “hoodie,” jumped out and fled. McLennan stated that Darnell Mann was not in the pick-up truck at any time.

Robert Jones corroborated at least part of McLennan’s alibi, testifying that he saw McLennan come out of a house on Overheart Lane. McLennan asked whether Jones could give him a ride home but Jones replied that he did not have a car.

McLennan’s first trial ended with a hung jury. After several postponements, the second trial began. Prior to opening statements, McLennan’s counsel requested that the circuit court permit the defense to call two additional defense witnesses, Gordon Smith and Douzoua Nado, even though they had not been identified before that date.

In a proffer to the court, McLennan’s counsel stated that Smith would testify that around nine-thirty the evening of the robbery, McLennan asked him for a ride, but that Smith said he couldn’t give him a ride at that moment. Similarly, Nado would testify that he was present when McLennan asked Smith for the ride.

The circuit court found that Smith and Nado were alibi witnesses who were not revealed in accordance with Rule 4-263(d)(3). The court, therefore, denied McLennan’s request and precluded Smith and Nado from testifying.

The jury convicted McLennan of armed robbery. The Court of Special Appeals affirmed.

McLennan appealed to the Court of Appeals, which affirmed.

LAW: On the date of the trial, McLennan was required by Rule 4-263(d)(3) to “furnish the name and address of each person other than the defendant whom the defendant intends to call as a witness to show that the defendant was not present at the time, place, and date designated by the State in its request [for alibi witnesses].”

McLennan argued Smith and Nado were not alibi witnesses because their testimony was relevant only to the issue of what McLennan was doing shortly before the robbery occurred, but not relevant to the issue of where McLennan was at the moment that the robbery occurred, and it was for the jury, not for the circuit court, to accept or reject their testimony.

McLennan’s theory of the case was that he could not have been involved in the robbery because a mere ten minutes before the robbery he was seen talking to Smith about getting a ride. He wasn’t talking about planning a robbery. According to McLennan, it was unlikely that he could have talked to Smith, gotten hooked up with Mendez and committed the robbery within a 10-minute window.

There was evidence that the offense occurred at some point between 9 p.m. and 9:57 p.m., which is a time period that was squarely within the time period that Smith interacted with McLennan.

The Supreme Court of Alaska has defined an “alibi” witness as a witness whose testimony “must tend to prove that it was impossible or highly improbable that [the defendant] was at the scene of the crime when it was alleged to have occurred.” Ferguson v. State, 488 P.2d 1032, 1039 (Alaska 1971).

In Taliaferro v. State, 295 Md. 376 (1983), the Court of Appeals stated: “Under the approach taken by most courts, whether the exclusion of alibi witness testimony is an abuse of discretion turns on the facts of the particular case. Principal among the relevant factors which recur in the opinions are whether the disclosure violation was technical or substantial, the timing of the ultimate disclosure, the reason, if any, for the violation, the degree of prejudice to the parties respectively offering and opposing the evidence, whether any resulting prejudice might be cured by a postponement and, if so, the overall desirability of a continuance. Frequently these factors overlap.” Id. at 390-391.

The record clearly showed that the circuit court applied the Taliaferro factors when ruling on McLennan’s request to call Smith and Nado. “[T]he trial court recognized that it had, and was applying, discretion. It heard extensive arguments from both counsel and a proffer of proof before initially ruling to exclude, … and again heard argument from defense counsel before deciding not to disturb its initial ruling.” Id. at 390.

“We will only reverse a trial court’s discretionary act if we find that the court has abused its discretion. [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. The decision under consideration has to be well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable. That … is included within the notion of ‘untenable grounds,’ ‘violative of fact and logic,’ and ‘against the logic and effect of facts and inferences before the court.’” Gray v. State, 388 Md. 366. 383-84 (2005) (quoting Dehn v. Edgecombe, 384 Md. 606, 628 (2005)).

In light of the numerous changes of trial date, the point in time at which Smith and Nado were first identified as defense witnesses, and the circumstances under which they came to the attention of McLennan’s trial counsel, the circuit court’s decision to exclude their testimony did not constitute an unfairly prejudicial abuse of discretion.

Accordingly, the judgment of the Court of Special Appeals was affirmed.

COMMENTARY: McLennan’s trial counsel stated that McLennan had “never mentioned” Smith or Nado to him, and suggested that the State could “argue” the significance of this fact. The State would have been unfairly prejudiced if the circuit court had agreed with this suggestion. Had the State either made such an argument, or cross-examined McLennan to confirm the truth of that statement, McLennan would have been in a position to argue that he was entitled to a new trial on the ground that such an argument and/or “questions invaded [his] attorney-client privilege.” Blanks v. State, 406 Md. 526, 541 (2008).

PRACTICE TIPS: “Alibi evidence” has been described as evidence showing the “improbability” — rather than the “impossibility” — of the presence of the accused at the scene of the crime. See Johnson v. Commonwealth, 210 Va. 16 (Va. 1969), and State v. Bolvin, 154 Vt. 339 (Vt. 1990).