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Opinions – Maryland Court of Appeals: 12/12/11

Administrative Law

Medical licensing

BOTTOM LINE: Where physician failed to disclose existence of a pending malpractice action against him on his license renewal application, physician violated ethics rules by falsely indicating that he was not involved in a medical malpractice action.

CASE: Kim v. Maryland State Board of Physicians, No. 1, Sept. Term, 2011. (filed Nov. 29, 2011) (Judges Bell, Harrell, Battaglia, Greene, Murphy, Adkins &  BARBERA). RecordFax No. 11-1129-09, 13 pages.

FACTS: Charles Kim came to the United States in 1973. He received his initial license to practice medicine in Maryland in 1977. He practices in the area of Obstetrics and Gynecology and is board certified.

In June 2005, a medical malpractice lawsuit was filed in the circuit court against Dr. Kim (the Wagner case). The Wagner case was pending when, on February 23, 2006, Kim filed an application for renewal of his privileges at Frederick Memorial Hospital.

The application asked: “Have any professional liability or malpractice claims been made against you during the past two years?” Kim initially marked “No” in response to that question but then amended his response and marked “Yes.” Kim also submitted a handwritten addendum to the application.

On August 15, 2006, Kim filed with the Board of Physicians (the Board) an application for Renewal of Medical License (the application). The application asked Kim whether, since July 1, 2004, he had been named as a defendant in a filing or settlement of a medical malpractice action, to which he responded no. The application further asked whether, since July 1, 2004, Kim, his partners or anyone in his immediate family, had been sued or had a claim filed against them for medical malpractice and whether they were currently a party in a medical malpractice case. Kim answered no to both questions.

In November 2006, Kim’s counsel was attempting to schedule a Case Resolution Conference for an unrelated matter. During the conversation with the Assistant Attorney General who was prosecuting the matter on behalf of the Board, Kim’s counsel revealed that Kim was scheduled to be in court on the date proposed for the Case Resolution Conference in that unrelated matter. That disclosure led to further investigation by the Board, which learned that Kim had been involved in a malpractice action at the time he submitted his application in August 2006.

The Board charged Kim with violating HO §14-404(a)(3), (a)(11), and (a)(36). An ALJ determined that Kim violated each of those sections and recommended that Kim be reprimanded, fined $5,000, and be required to take an ethics course.

The Board adopted the majority of the ALJ’s findings of fact as well as the ALJ’s conclusions of law. As sanctions, the Board placed Kim on six months probation, fined him $5,000, and required him to complete an ethics course. The circuit court affirmed the Board’s decision. The Court of Special of Appeals also affirmed the Board’s decision.

Kim appealed to the Court of Appeals, which affirmed.

LAW: HO §14–404 provides that the Board has the authority to sanction a physician licensed in Maryland if the licensee is guilty of “[i]mmoral…or unprofessional conduct in the practice of medicine” (§14–404(a)(3)), if the licensee “[w]illfully makes or files a false report or record in the practice of medicine” (§14–404(a)(11)), or if the licensee “[w]illfully makes a false representation when seeking or making application for licensure or any other application related to the practice of medicine” (§14–404(a)(36)).

In McDonnell v. Commission on Medical Discipline, 301 Md. 426 (1984), the physician, McDonnell, communicated with experts directly and threatened to have transcripts of their depositions disseminated to the local and national medical communities. Id. at 428. The experts testified against McDonnell, despite his intimidation. Id. at 429. After the trial concluded, the board reprimanded McDonnell for “immoral conduct of a physician in his practice as a physician.” Id. at 429-30.

The Court of Appeals concluded that, although McDonnell’s conduct was improper, it was not sanctionable because it was “clear that the legislature did not intend that a physician’s general moral character would be subject to sanction.” Id. at 436. The Court held that, to be sanctionable, conduct must be “directly tied to the physician’s conduct in the actual performance of the practice of medicine, i.e., in the diagnosis, care, or treatment of patients.” Id. at 437.

In Finucan v. Md. Bd. of Physician Quality Assurance, 380 Md. 577 (2004), the Court of Appeals upheld sanctions against a physician who for engaging in sexual relationships with patients, finding it occurred “in the practice of medicine” because the physician’s behavior went “to the heart of his duties as their family doctor.” Id. at 599-600. See also Bd. of Physician Quality Assurance v. Banks, 354 Md. 59 (1991).

In Cornfeld v. State Board of Physicians, 174 Md. App. 456 (2007), the physician, Cornfeld, while being investigated about his conduct during a surgery he had performed, made false statements at both the hospital peer review stage of the investigation and during the Board’s subsequent investigation and disciplinary proceedings. Id. at 467. The Court of Special Appeals affirmed the Board’s determination that Cornfeld’s misconduct occurred “in the practice of medicine” because peer review proceedings “serve[ ] an important patient care purpose.” Id. at 479-80.

Moreover, Cornfeld’s false statements related to instructions he had given to others in rendering surgical care; consequently, his conduct was directly related to medical “treatment” and “surgery,” within the statutory definition of “practice medicine.” Id. at 481.

In “considering whether a physician’s conduct was within the statutory requirement of ‘in the practice of medicine,’ a critical factor has been whether the conduct occurred while the physician was performing a task integral to his or her medical practice.” Banks, 354 Md. at 74. Kim’s completion and filing of his application to renew his physician’s license is unquestionably “a task integral to his…practice.” Without a license, Kim would have no authority to practice.

Moreover, the Board did not err in adopting the Administrative Law Judge’s finding that filing a license renewal application is sufficiently intertwined with patient care. The Board must be able to rely on the accuracy of information conveyed in license applications in order to investigate and determine physicians’ fitness to practice medicine. A physician’s submission of false information regarding malpractice claims in license renewal applications impedes the Board’s ability to make accurate determinations about a physician’s continued fitness.

Giving to the Board the deference to which it is entitled in the interpretation and application of HO §14–404, the Board did not err in concluding that Kim’s falsehood concerning the pendency of the Wagner malpractice case was conduct “in the practice of medicine.”

HO §14–404(a)(11) and (36)) require a finding that Kim acted “willfully.” “Willful,” for purposes of that section, requires proof that the conduct at issue was done intentionally, not that it was committed with the intent to deceive or with malice. See Deibler v. State, 365 Md. 185, 199 (2001).

The Administrative Law Judge found that Kim came to the United States more than thirty years ago, completed a three-year residency conducted in English, took oral and written tests for Board certification in English, and speaks English in his medical practice. From those first-level findings, the ALJ made the ultimate factual findings that Kim intended to provide the false statements that he submitted in his license renewal application and that his responses were not accidental or inadvertent.

The Board accepted the Administrative Law Judge’s findings in determining for itself that Kim “willfully ma[de] or file[d] a false report or record in the practice of medicine,” under §14–404(a)(11); and “willfully ma[de] a false representation [while] seeking or making application for licensure,” under §14–404(a)(36). The Board’s decision was not premised on an erroneous conclusion of law and was supported by substantial evidence.

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

COMMENTARY: “Except for consideration of a proposed resolution of a case achieved through the [Case Resolution Conference], the Board may not make later use of any commentary, admissions, facts revealed, or positions taken, unless the subject matter is available from other sources or is otherwise discovered.” COMAR 10.32.02.03.C(7)(d). The statute does not include within its protection of confidentiality statements concerning the mere logistics attendant to a CRC. A statement relating solely to the scheduling of a CRC is not “commentary,” an “admission[ ],” a “fact[ ] revealed,” or a “position[ ] taken” at a CRC. COMAR 10.32.02.03.C(7)(d).

Likewise, there was no error in the Board’s additional rationale that the statement that Kim was “in court” falls within the regulation’s exception to the confidentiality protection for information that “is available from other sources or is otherwise discovered.” See Attorney Grievance Commission v. Lee, 387 Md. 89 (2005).

COMAR 10.32.02.03.C(7)(d), by its plain language, allows for the use of information that, even though obtained during a CRC, is “available from other sources.” There was substantial evidence not only that the information that Kim would be “in court” on a certain date was available from the Health Claims Arbitrations Office and the Maryland Judiciary Case Search, but also that the Board actually acquired the malpractice case information from those other sources.

Accordingly, the Board committed no error in its application and construction of COMAR 10.32.02.03.C(7)(d).

Criminal Law

Obstructing and hindering

BOTTOM LINE: Defendant’s conviction for obstructing and hindering was reversed because the evidence presented was insufficient to prove that defendant’s

giving of a false name during a traffic stop actually hindered officer’s investigation.
CASE: Titus v. State, No. 6, Sept. Term 2011 (filed Nov. 29, 2011) (Judges Bell, Harrell, Battaglia, GREENE, Murphy, Adkins & Barbera). RecordFax No. 11-1129-22, 30 pages.

FACTS: On July 9, 2008, Corporal Mario Devivio was on routine patrol when he observed one of two motorcycles traveling parallel with each other cross the double yellow line numerous times. Devivio stopped that motorcycle and ran the vehicle information, finding that it was registered to Gerald Titus. When Devivio informed Titus of the purpose of the stop and requested his license and registration, Titus handed Devivio a Florida driver’s license with Titus’ picture and the name Frederick Karr.

Because Devivio detected that Titus may have been drinking, at Devivio’s request, Titus agreed to perform Standardized Field Sobriety Testing. Titus failed each of the tests and, as a result, Devivio arrested Titus.

Titus consented to further testing at the police station and signed the name “Frederick Karr” on the form. Those tests confirmed that Titus’ blood alcohol level was above the legal limit.

On cross-examination, Devivio indicated that Lieutenant John Shippee, with the Carroll County Sheriff’s Office, told Devivio that Titus had given him a false name. In response to that information, Devivio search the MVA with Titus’ real name and came up with a color photo. After verifying the address associated with Titus’ name and that Titus was the registered owner of the motorcycle, Devivio determined that Titus was using, a false name. Devivio indicated on cross-examination, however, that he did not recharge Titus.

Titus was convicted by a jury of obstructing and hindering, driving under the influence of alcohol per se, driving while impaired by alcohol, and giving a false or fictitious name to a uniformed police officer. The Court of Special Appeals affirmed Titus’s conviction for obstructing and hindering and the sentence that he received for his conviction of driving under the influence of alcohol per se.

Titus appealed to the Court of Appeals, which reversed.

LAW:     In Maryland, obstructing and hindering a law enforcement officer in the performance of his duty is a common law offense. See Cover v. State, 297 Md. 398, 400 (1983). There is a four-part test for analyzing the offense of obstructing and hindering a police officer in the performance of his duty: “(1) A police officer engaged in the performance of a duty; (2) An act, or perhaps an omission, by the accused which obstructs or hinders the officer in the performance of that duty; (3) Knowledge by the accused of facts comprising element (1); and (4) Intent to obstruct or hinder the officer by the act or omission constituting element (2).” Cover, 297 Md. at 413.

In examining what actions constitute the performance of a “duty,” “a police ‘duty’ sufficient to trigger a hindering charge need not be an arrest.” Lamb v. State, 141 Md. App. 610, 626 (2001). “‘[T]he test is whether the officer is acting in good faith within the scope of his [or her] duties as an officer or is pursuing a personal intent or frolic of his [or her] own.’” Glover v. State, 88 Md. App. 393, 406 (1991) (quoting State v. Biller, 501 A.2d 1218, 1221 (Conn. App.Ct.1985)).

The second element of the offense requires proof of “how [a defendant’s] act actually obstructed and hindered the police officers … based on the totality of the circumstances[.]” Nieves v. State, 160 Md. App. 647, 656-57 (2004).

In Cover, a plainclothes officer was observing an individual acting in a suspicious manner in an area where a burglary had recently been perpetrated. Cover, 297 Md. at 400. While the officer was attempting to perform surveillance, he became aware of the defendant sitting in her vehicle in a nearby lot. The officer instructed the defendant to leave the area to avoid interfering with his investigation. The defendant drove away, passing by the suspect of the investigation. The officer then heard the defendant “sounding her car’s horn and continu[ing] to sound it for one and one-half to two minutes.” Cover, 297 Md. at 404.

The Court of Special Appeals held that the State’s evidence was insufficient to convict the defendant of obstructing and hindering an officer. The Court determined it was “necessary to define an act of hindering to include an act which deprived [the officer] of the opportunity of seeing whether, in normal circumstances, the unidentified subject would attempt to [break the law].” Cover, 297 Md. at 414.

While there was sufficient evidence to support a finding that it was the defendant’s intent to warn the suspect of police presence, “the evidence was insufficient to support a finding beyond a reasonable doubt that the sounding of the car horn was understood as a warning and in fact hindered [the officer] from further observing the subject.” Id. at 415.

The third element of the offense of obstructing and hindering is knowledge by the accused that he or she is being confronted by an officer in the performance of a duty. In proving this element, “[m]ere knowledge that the person allegedly hindered was a police officer does not suffice; there also must be knowledge that the officer was engaged in performing police duties when hindered.” DiPino v. Davis, 354 Md. 18, 28 (1999).

The fourth element of the offense is an intent on the part of the accused to obstruct or hinder the officer in the performance of his or her duty. Such an intent “may be inferred from the defendant’s voluntary and knowing commission of an act which is forbidden by law.” Comm’n v. Sheinbein, 372 Md. 224, 245 (2002).

In this case, there was sufficient evidence to support the conclusion that at the time of the offense Devivio was a police officer engaged in the performance of his duties and that Titus had knowledge of these facts. It was also reasonable for the jury to find, beyond a reasonable doubt, that Titus had the intent to obstruct or hinder Devivio in the performance of his duties.  Thus, these elements of the offense of obstructing and hindering were proven beyond a reasonable doubt.

However, the evidence presented by the State at trial was not sufficient to prove beyond a reasonable doubt that Devivio was actually obstructed or hindered in the performance of his duties, the second element of obstructing and hindering.

Devivio’s actions after the traffic stop were, at best, uncertain. Devivio testified on cross-examination that he looked through MVA records and found a picture of Titus which he used to determine that Titus had given him a false name on the night of the stop. There was no indication in the record, however, of how this new information impacted the investigative process, much less how it obstructed or hindered the investigative process.

The State speculated that Devivio may have acted differently in conducting the traffic stop had he been aware of Titus’s true identity and been able to discover the status of Titus’ license and his criminal history. There was no testimony from Devivio, however, regarding how information about a vehicle operator’s driving record or criminal history would impact a traffic stop generally, or how Titus’ driving record and criminal history specifically would have altered his approach on the evening of July 9, 2008.

In addition, it was unclear from the record what steps, if any, Devivio took to correct the error of presumably having charged the crimes committed by Titus under a different name.

It was the State’s burden to prove beyond a reasonable doubt that Titus committed the offense of obstructing and hindering a law enforcement officer. To meet this burden of proof, the State should have introduced evidence at trial to show how Titus’ conduct actually obstructed or hindered that investigation. Because the State failed even to question Devivio about how he was actually obstructed or hindered in performing his duties, or to establish the manner and degree of obstruction or hindrance, there was insufficient evidence presented at trial for the trier of fact to conclude that Titus’ conduct actually obstructed and hindered Devivio.

Accordingly, Titus’ conviction for obstructing and hindering a law enforcement officer was reversed.

COMMENTARY: Maryland courts have recognized and explained three categories of the offense of obstructing and hindering a police officer. The first category is positive direct obstruction, which includes “those cases in which the constable acts directly against the citizen or his property and is physically resisted.” Lidstone in “Offence of Obstruction: Obstructing Freedom?” [1983] Crim. L.R. 29, 30.

The second category is passive direct obstruction, “in which the constable seeks to make the citizen act directly, and the citizen refuses or fails to act as required.” Id.

Lastly, the third category is positive indirect obstruction, which involves situations where police are “not acting directly against the citizen but are acting indirectly against other citizens who are, or may be, about to commit offences against the criminal law, and the citizen does an act which obstructs them in their general duty to prevent or detect crime, intending to frustrate the police operation.” Id.

The conduct of Titus during the traffic stop would have fallen under the category of passive direct obstruction.

PRACTICE TIPS: “[R]esisting an officer in the performance of his duties [i]s an offense that could occur even before there was an arrest,” and, therefore, “the offense of resisting arrest requires proof of an act different from or additional to the acts necessary to prove the offense of resisting, hindering, or obstructing an officer in the performance of his duties[.]” Busch v. State, 289 Md. 669, 677 (1981).

Criminal Procedure

Jury instructions

BOTTOM LINE: Trial court’s so-called “anti-CSI effect” jury instruction, in which the jury was instructed that there was no legal requirement that the State utilize any specific investigative technique or scientific test to prove its, was improper because it relieved the State of its burden to prove guilt beyond a reasonable doubt, invaded the province of the jury, and violated defendant’s constitutional right to a fair trial.

CASE: Stabb v. State, No. 2, Sept. Term, 2011 (filed Nov. 22, 2011) (Judges Bell, HARRELL, Battaglia, Green, Murphy, Adkins & Barbera). RecordFax No. 11-1122-22, 20 pages.

FACTS: Kenneth Stabb was convicted by a jury of one count of third-degree sexual assault and one count of second-degree assault.

Eight-year-old Kaylen J. testified that, on August 17, 2008, she was sitting on the hood of her mother’s van, in front of her home, when Stabb touched her “private” with his hand, inside of her underwear. Kaylen J. stated that Stabb told her, “If you tell anyone I’ll kill you.” Kaylen J. related that her mother, Melissa R., ran out of the house, took Kaylen J. off the hood of the van, brought her inside, and someone “called the cops.” Before the incident, Kaylen J. said that she liked Stabb, and thought he was nice and funny.

Officer Jonas Berry testified for the State that he responded to Kaylen J.’s family home at 11:40 p.m. (based on a telephone complaint), spoke with Melissa R., and interviewed Kaylen J. briefly. He observed that Kaylen J. appeared “offset, skittish, very introverted,” with shaking hands and pulling nervously on her nightgown during the interview. Kaylen J. told Officer Barry that Stabb “touched her pee pee” on the inside of her underwear.

Barry went looking for Stabb. He found Stabb in his home nearby and arrested him. Because there was no reported penetration during the assault, Barry did not refer Kaylen J. for medical treatment.

Heather Sullivan, a licensed graduate social worker employed by the CAC, was called as a State’s witness. Sullivan interviewed Kaylen J. at the CAC on 21 August 2008. A video and audio recording of the interview was made, and portions of it were replayed for the jury. In the recording, Kaylen J. identified parts of the human body on drawings and on dolls, and demonstrated on them where Stabb touched her. Sullivan was cross-examined as to why she did not refer Kaylen J. for a Sexual Assault Forensics Exam (“SAFE”). Sullivan responded that a SAFE is done to treat injuries and determine whether there is any physical evidence of sexual assault. Defense counsel pressed Sullivan about the potential for obtaining any kind of physical evidence had a SAFE been performed on Kaylen J. Sullivan responded that there was no possibility of the continued existence of physical evidence as it had been several days between the assault and Kaylen J.’s interview at the CAC. Sullivan also opined that it was not in Kaylen J.’s best interest to undergo a pelvic exam, in the absence of previous disclosure of penetration.

The State proposed jury instructions that provided, inter alia, “there is no legal requirement that the State utilize any specific investigative technique or scientific test to prove its case.” Stabb’s attorney objected to the instruction.

Stabb testified that, during an interview by Detective Seichepine, the detective told him that his DNA was found on Kaylen J. Stabb responded to that revelation by asserting that his DNA was “not on that child.” The State called Detective Seichepine as a rebuttal witness. On cross-examination by defense counsel, Detective Seichepine admitted that he told falsely Stabb that an exam had been performed on Kaylen J. On redirect examination, the State questioned the detective whether a SAFE would have yielded any medical evidence, to which the detective responded that the possibility was “very minimal.” When questioned further by the State, Seichepine testified specifically that he had never heard of anyone obtaining fingerprints from a SAFE. During re-cross, the detective claimed that DNA evidence could be found in skin-to-skin contact.

After the defense rested and before closing arguments, the judge gave the jury its instructions, including the scientific evidence instruction that Stabb had earlier opposed. The jury returned a verdict of guilty on both counts, and Stabb was sentenced to eight years in prison, with all but four years suspended.

Stabb appealed to the Court of Special Appeals, which reversed.

LAW: The issue was whether the trial court erred in instructing the jury that there is no legal requirement that the State utilize any specific investigative technique or scientific test to prove its case.

Article 21 of the Maryland Declaration of Rights and the Sixth Amendment to the United States Constitution grant to criminal defendants the right to a fair trial, which includes a requirement that trial judges refrain from making statements that may influence improperly the jury. Butler v. State, 392 Md. 169, 192 (2006); see also Gore v. State, 309 Md. 203, 214 (1987) (stating that “it is generally improper for a trial judge to show his or her opinion of those matters upon which the jury will eventually pass”).

Article 23 of the Maryland Declaration of Rights states that “the Jury shall be the Judges of the Law, as well as of fact …,” which limits the trial court from giving jury instructions that comment on evidence properly before the jury. Gore, 309 Md. at 210. Trial judges occupy a position of such authority in a court room that they “should be exceedingly careful in any remarks made…during the progress of a trial, either in passing upon evidence or ruling upon prayers, and should carefully refrain, either directly or indirectly, from giving expression to an opinion upon the existence or not of any fact, which should be left to the finding of the jury….” Id. at 212.

The proper role of the trial court in delivering jury instructions is to “aid the jury in clearly understanding the case, to provide guidance for the jury’s deliberations, and to help the jury arrive at a correct verdict.” Chambers v. State, 337 Md. 44, 48 (1994).

Maryland Rule 4–325(c) guides trial courts in delivering jury instructions: “The court may, and at the request of any party shall, instruct the jury as to the applicable law and the extent to which the instructions are binding. The court may give its instructions orally or, with the consent of the parties, in writing instead of orally. The court need not grant a requested instruction if the matter is fairly covered by instructions actually given.”

The rule “requir[es] the trial court to give a requested instruction under the following circumstances: (1) the requested instruction is a correct statement of law; (2) the requested instruction is applicable under the facts of the case; and (3) the content of the requested instruction was not fairly covered elsewhere in the jury instruction actually given.” Thompson v. State, 393 Md. 291, 302-303 (2006). An improper, objectionable instruction includes one that serves to relieve the state of its burden to prove a defendant’s guilt beyond a reasonable doubt. State v. Evans, 278 Md. 197, 207, (1976).

Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously. Where the decision or order is a matter of discretion it will not be disturbed on review except on a clear showing of abuse of discretion, that is, discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons. See Grandison v. State, 341 Md. 175, 211 (1995).

The specific jury instruction at issue in this case was addressed in Atkins v. State, 421 Md. 434 (2011). Atkins was convicted of three counts of second-degree assault stemming from a physical altercation of unexplained origin that culminated eventually in Atkins drawing a foldable-blade pocketknife and wounding three people. Atkins, 421 Md. at 438-39. Three days later, police obtained a search warrant for Atkins’ home and retrieved a 12-inch-long knife from his bedside table. Id. at 439.

The State relied heavily on this knife as evidence of the crime, while the defense counsel focused on the lack of physical evidence collected from the knife tying it to the crime through DNA or fingerprints. Id. at 440-42. The trial court, over Atkins’s objection, delivered the same scientific evidence jury instruction at issue in the present case. Id. at at 441-42.

The Court of Special Appeals, based on its holding in Evans v. State, 174 Md. App. 549 (2007), affirmed the trial court’s use of the jury instruction. The Court of Appeals reversed, however, finding that the “instruction was not proper under the facts of the case, was fairly covered in the instructions actually given, and, rather than solving a problem arising from the circumstances of the case, created a problem that unfairly prejudiced the defendant’s case.” Atkins, 421 Md. at 447.

The most important consideration in evaluating whether a trial judge abused his or her discretion in giving a scientific evidence jury instruction is whether the “instruction will run afoul of the prohibition against relieving the State of its burden where … its relation [of the instruction] to the reasonable doubt standard [is] unclear.” Adkins, 421 Md. at 451 (quoting Evans, 174 Md. App. at 571).

Further, after evaluating whether there was a need for a curative instruction to clarify the State’s burden as it relates to specific investigative techniques or scientific tests, it was concluded that defense counsel questioned properly the lack of evidence presented by the State by asking, during cross-examination of police witnesses, whether the police were capable of looking for blood or skin cells on the knife recovered from Atkins’s bedroom during a “legitimate, brief, and reasonable inquiry.” Id. at 452-53.

Under the circumstances in Atkins, the jury instruction constituted an improper comment on the weight of the evidence, thus abrogating Atkins’s protected right to a fair trial. Id. at 453. The instruction “directed the jury to ignore the fact that the State had not presented evidence connecting the knife to his crime, implying that the lack of such evidence is not necessary or relevant to the determination of guilt, and to disregard any argument by the defense to the contrary.” Id.

Without resolving whether the form of the jury instruction given in the present case was a correct statement of law, it nonetheless was given improperly under the circumstances. Also, the subject law was covered fairly by other given instructions.

The pertinent jury instruction at issue was identical to the instruction given in Atkins; however, the similarities ended there.

In Atkins, it was found that the “missing” forensic or other evidence connecting the alleged weapon to the crime was “of critical importance” to the State’s case, as there was little evidence linking the foot-long knife recovered from Atkins’s night stand with the crime. Atkins, 421 Md. at 450.

Here, the lack of forensic evidence, i.e., DNA or fingerprints corroborating Stabb’s asserted misconduct towards Kaylen J., may not have been as critical to the strength of the State’s case because of the victim’s testimony and the circumstantial evidence supplied by the State’s other witnesses.

In closing, although defense counsel commented on the lack of physical evidence, the overwhelming majority of her argument focused on the State’s reliance on a single child witness, conflicting statements of the State’s other witnesses, motive of Melissa R. and Jane R. to influence Kaylen J.’s statements, Stabb’s alibi, and possibility of an alternative assailant. Nonetheless, the lack of scientific evidence was an integral part of the defense’s theories.

The “anti-CSI effect” jury instruction given, in the circumstances of this case, was improper because it relieved the State of its burden to prove Stabb was guilty beyond a reasonable doubt, invaded the province of the jury, and, thus, violated Stabb’s constitutional right to a fair trial. Accordingly, the judgment of the Court of Special Appeals was reversed and the case was remanded for a new trial.

COMMENTARY: Another problem with the “anti-CSI effect” jury instruction in this present case was that it was given preemptively, i.e., before any explicit argument by the defense on the absence of DNA or fingerprint testing of Kaylen J. or her clothing.

Well before closing arguments, the trial court hinted that it might deliver the State’s “anti-CSI effect” instruction, after defense counsel first questioned Sullivan as to whether any physical evidence could have been obtained from a Sexual Assault Forensic Examination (SAFE) of Kaylen J. Later, during a recess in the defense’s case, the trial court revisited the issue and allowed defense counsel to state and explain her objection to the proposed jury instruction. Defense counsel argued that it would be improper to give the jury instruction unless the court needed to cure a “robust and vehement” closing argument that “harped” on the lack of scientific evidence.

Defense counsel was correct. Stabb’s defense argued properly and without undue emphasis the lack of corroborating physical evidence of the crime, and questioned Detective Seichepine and Sullivan as to the likelihood of the existence of such evidence and why a SAFE was not performed, but did not “harp” impermissibly on the lack of physical evidence in its case-in-chief or during closing arguments.

In fact, the main thrust of Stabb’s defense rested on an alibi theory. His closing arguments focused also on numerous ways the defense contended that the State had failed to satisfy its reasonable doubt burden, only one of which was its failure to perform a SAFE. When the defense did allude to the lack of corroborating physical evidence, its comments were “legitimate, brief, and reasonable,” as in Atkins. These factors distinguished the present case from Evans.

PRACTICE TIPS: Because of the currently inconclusive state of the scholarly legal and/or scientific communities’ research, taken as a whole, regarding whether such a phenomenon as the “CSI effect” exists, the use of “anti-CSI effect” jury instructions (especially when given preemptively before closing arguments or otherwise improper defense questioning or commentary during trial regarding the absence of scientific evidence as part of the State’s case) is fraught with the potential for reversible error. To the extent that such an instruction is requested, its use ought to be confined to situations where it responds to correction of a pre-existing overreaching by the defense, i.e., a curative instruction.

Evidence

Expert testimony

BOTTOM LINE: Expert testimony concerning a street gang was admissible as proof of motive where fact evidence established that the crime charged was gang-related and the probative value of the testimony was not substantially outweighed by any unfair prejudice to the defendant.

CASE: Gutierrez v. State, No. 98, Sept. Term, 2009 (filed Nov. 29, 2011) (Judges Harrell, Battaglia, Murphy, ADKINS & Barbera) (Judges Bell & Greene dissenting). RecordFax No. 11-1129-29, 20 pages.

FACTS: Around midnight on July 14, 2007, Francisco Quintanilla was standing with a group of friends outside a house in Riverdale, Prince George’s County. A black Honda Civic containing four males approached the house and the front passenger addressed the group, shouting “Mara Salvatrucha[.]” The witnesses interpreted this statement to mean that the passenger was a member of the MS-13 street gang. After one of Quintanilla’s companions insulted MS-13, the passenger fired multiple shots into the group, fatally wounding Quintanilla.

Ellen Villatoro was a part of the group in front of the house and claimed to have had a clear view of the shooter. Villatoro identified Gutierrez in a photographic array as the shooter.

At trial, Luis Alvarado-Pineda, Gutierrez’s co-defendant driver testified that on the night of the shooting, Gutierrez was riding in the front passenger seat, and that two other males were sitting in rear passenger seats. According to Alvarado-Pineda, a member of the party insulted Gutierrez for representing that he belonged to MS-13 and Gutierrez responded by pulling out a gun and firing four shots into the crowd.

The prosecution also introduced pictures from Gutierrez’s MySpace webpage. One of Gutierrez’s fellow passengers, Hector Tirado, testified for the State and identified Gutierrez’s gestures as those used by members of MS-13. He identified Gutierrez as the shooter that night.

The prosecution called Sergeant George Norris as an expert witness in the area of MS-13 and gangs in general. Norris explained that “MS-13” stands for “Mara Salvatrucha,” with “mara” meaning gang or group, “salva” referring to El Salvador, and “trucha” translating as “watch out” or “look out.” The 13 in the gang’s name is indicative of their alliance with the Mexican Mafia.

Norris also described how prospective members are inducted, or “jumped,” into MS-13, which involves a 13-second beating by four or five gang members. He identified Riverdale as an area where rival gang members are expected to be. Norris explained that MS-13 members respond to criticism of their gang or untruthful displays of MS-13 membership with violence “up to death.” In fact, Norris testified that MS-13 is “the gang that [law enforcement] had seen the most violence with recently for the past four, four and a half years in this region.”

Finally, Norris articulated a belief that Gutierrez was affiliated with MS-13 based on pictures of him taken from MySpace.

Prior to trial, defense counsel attempted several times to prevent the admission of evidence of MS-13 affiliation four separate times. The circuit court denied the request each time.

A jury convicted Gutierrez of first-degree murder and the use of a handgun in the commission of a felony. The circuit court imposed a life sentence on Gutierrez for murder and a consecutive 20 year sentence for his handgun conviction.

The Court of Appeals, which granted certiorari on its own initiative prior to any proceedings in the Court of Special Appeals, affirmed the judgment of the circuit court.

LAW: Under Rule 5-702, expert testimony may be admitted if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. Under Rule 5-404(b), a court may not admit evidence of other crimes, wrongs, or acts that is offered “to prove the character of a person in order to show action in conformity therewith.” Such evidence is known as evidence of “prior bad acts.” See Klauenberg v. State, 355 Md. 528, 547-49 & n. 3 (1999).

A trial judge may, however, admit prior bad acts evidence if it satisfies three requirements. First, the evidence must be “substantially relevant to some contested issue in the case.” State v. Faulkner, 314 Md. 630, 641 (1989). Such evidence may be relevant to prove “motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, or absence of mistake or accident.” Rule 5-404(b).

Second, the evidence must be “clear and convincing in establishing the accused’s involvement” in the prior bad acts. Faulkner, 314 Md. at 634.

Finally, the evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” Rule 5-403; see also Faulkner, 314 Md. at 635.

Generally, a gang expert’s testimony is relevant and not unduly prejudicial when other evidence demonstrates that the crime was gang-related. In United States v. Mansoori, 304 F.3d 635 (7th Cir.2002), a gang expert’s testimony was relevant to the charge of conspiracy with intent to distribute cocaine where court-authorized wiretaps recorded the defendant’s involvement in a drug deal and three of the five defendants were members of a gang that controlled narcotics distribution in the area. See id. at 642-43.

The Court of Special Appeals has permitted gang expert testimony where fact evidence showed that the crime was motivated by gang affiliation. In Ayala v. State, 174 Md. App. 647 (2007), this fact evidence came in the form of two pretrial statements, the contents of which were admitted at trial, in which Ayala said that he was a member of MS-13, that the victim had claimed to be a member of the 18th Street Gang, and that Ayala had previously been beaten by a member of the 18th Street Gang and still had a cut on his forehead from the fight. See id. at 653-54.

The trial court permitted a detective to testify as to the meaning of the name MS-13, including its link to the Mexican Mafia, the “jumping in” process, and the expectation that gang members must “get[ ] at [the gang’s enemies].” Id. at 654-55. The detective also identified the 18th Street Gang as the chief rival of MS-13. See id. at 655.

In affirming the trial court’s admission of the State’s expert witness, the Court of Special Appeals stated that the testimony served to “explain the otherwise inexplicable, by providing a motive for a brutal and seemingly senseless killing.” Id. at 664. According to the Court of Special Appeals, the expert’s testimony corroborated Ayala’s pretrial statements about gang membership and “was highly probative in that it explained the gang’s code of conduct and revealed the gang’s long and bitter rivalry with the 18th Street [G]ang.” Thus, it was “highly probative in establishing motive and was not unduly prejudicial under the circumstances.” Id.

Here, evidence supplied by no less than three fact witnesses suggested that Quintanilla’s murder was motivated by Gutierrez’s ties to MS-13. In Tirado’s grand jury testimony, supplied to the jury as a State exhibit, he claimed that Gutierrez shot Quintanilla so that Gutierrez could get into the gang.

Furthermore, during trial Tirado, Alvarado-Pineda, and Villatoro all testified that, upon reaching the home, Gutierrez shouted “Mara Salvatrucha” and then asked the group outside the house to identify their own gang affiliations. These statements immediately preceded the shooting, and suggested Gutierrez’s motive for pulling the trigger. Clearly, the threshold requirement was met.

Although the fact evidence was enough to open the door for expert testimony, the question remained whether the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. Rule 5-403.

The shooting’s strong MS-13 undercurrent heightened the probative value of Norris’s testimony such that it was not outweighed by any unfair prejudice.

Norris’s discussion of the Spanish name of “MS-13,” including his comment that the “13” denoted a tie to the Mexican Mafia, explained why Gutierrez’s “Mara Salvatrucha” declaration indicated MS-13 loyalties.

Second, Norris’s description of the process of “jumping in” as a 13-second beating corroborated Tirado’s grand jury testimony that this seemingly senseless shooting was really Gutierrez’s attempt to join MS-13.

Third, Norris’s testimony that MS-13 members respond to insults with punishment “up to death” was relevant following testimony that Gutierrez fired four shots after being insulted. The same conclusion was reached with respect to Norris’s statement that gang members also respond to “false flagging” with violence up to death, because “false flagging” is an insult to the exclusivity and hierarchy of the gang.

The trial court did err, however, in allowing Norris to comment that MS-13 is the gang that law enforcement “had seen the most violence with recently for the past four…years in this region.” Yet, this was harmless error. Looking to the other evidence on the record, the statement would not have persuaded the jury to render a guilty verdict when it would not have otherwise done so.  See Dorsey v. State, 276 Md. 638, 659 (1976).

Accordingly, the circuit court did not abuse its discretion in permitting Norris to testify because ample fact evidence established a connection between Quintanilla’s shooting death and the gang MS-13.

COMMENTARY: The State contended that Gutierrez never challenged the particular aspects of Norris’s testimony that he complained of, and thus his claims were not preserved for review.

In B. Sifrit v. State, 383 Md. 116 (2004), both the defendant and his wife had been convicted of murder in separate trials. See id. at 121-22. At his trial, the defendant sought to admit his mother’s testimony regarding another incident where his wife had threatened his mother with a gun, offering the testimony to show that there was another incident of the wife pulling a gun on another human being. Id. at 136. The trial court ruled that the testimony was not relevant. Id.

On appeal, the defendant claimed that the testimony was relevant to show that the wife “was capable of pulling a weapon on another individual outside of [the defendant’s] presence” and had the tendency to show that she was capable of committing the present crimes alone. Id. The Court denied that argument on preservation grounds, relying on the rule that “when an objector sets forth the specific grounds for his objection…the objector will be bound by those grounds and will ordinarily be deemed to have waived other grounds not specified.” Id.

Rule 4–323(a) provides that “[t]he grounds for the objection need not be stated unless the court, at the request of a party or on its own initiative, so directs.” This rule “reflect[s] the long established Maryland practice that a contemporaneous general objection to the admission of evidence ordinarily preserves for appellate review all grounds which may exist for the inadmissibility of the evidence.” Boyd v. State, 399 Md. 457, 475-76 (2007).

Gutierrez’s counsel objected to any testimony as to MS-13 and Gutierrez’s involvement in a gang no less than four times. Furthermore, the trial court granted a standing objection to any reference that the State made to MS-13 as well as Gutierrez’s continuing objection to any testimony presented by Norris that did not pertain to the events of the evening of the shooting. The court did not ask, nor did Gutierrez disclose, the grounds for his continuing objection.

Thus, this case was distinguishable from B. Sifrit where defense counsel articulated the reason that the proposed testimony was relevant and should be admissible, thereby waiving all grounds not specified. Therefore, defense counsel’s objections were properly preserved for appeal.

DISSENT: According to the dissent, the expert testimony was inadmissible because it was not material since motive is not an element of the crime of murder. It was also inadmissible because the probative value of the evidence did not outweigh its prejudicial impact.

Furthermore, according to the dissent, the trial court’s error in allowing Norris to testify that MS-13 is the gang that law enforcement had seen the most violence with was not harmless.

PRACTICE TIPS: The admissibility of evidence regarding gang affiliation and gang culture, and its tension with the rule against prior bad acts, is an issue with which courts across the country have struggled. See generally Theuman, Annotation, Admissibility of Evidence of Accused’s Membership in Gang, 39 A.L.R.4TH 775 (2010).

Numerous jurisdictions have permitted the inclusion of such evidence as relevant and not unduly prejudicial. See, e.g., United States v. Mansoori, 304 F.3d 635 (7th Cir.2002); United States v. Robinson, 978 F.2d 1554 (10th Cir.1992). Some states have been more vocal about the need for evidence showing that the crime was gang-related, expressing a concern that “evidence of gang affiliation could be used improperly as a backdoor means of introducing character evidence by associating the defendant with the gang and describing the gang’s bad acts.” See State v. Torrez, 210 P.3d 228 (N.M.2009); People v. Bryant, 609 N.E.2d 910 (Ill. App.Ct.1993).

Evidence

State of mind

BOTTOM LINE: Where the issue at trial was whether the victim committed suicide or was murdered, the trial court erred in excluding defense evidence of the victim’s depressed state of mind.

CASE: Smith v. State, No. 10, Sept. Term, 2011 (filed Nov. 29, 2011) (Judges Bell, Harrell, Battaglia, Greene Adkins, Eldridge (retired, specially assigned), & RODOWSKY (retired, specially assigned)). RecordFax No. 11-1129-23, 31 pages.

FACTS: Michael McQueen died in the early-morning hours of Tuesday, September 26, 2006. The cause of death was a contact, gunshot wound to the right temple. He died in the living room of an apartment that he shared with Gary Smith. McQueen and Smith were former Army Rangers who had served together in the same intelligence unit in Afghanistan.

McQueen had returned from his third Afghanistan deployment to Fort Benning, Georgia in late June 2006. While at Fort Benning, McQueen, in early August 2006, was arrested for DWI.

Smith told the police that when he returned to the apartment from school late on the afternoon of Monday, the twenty-fifth, he and McQueen smoked some marijuana, had dinner, and drank a couple of beers. Thereafter, they went to the VFW Post where they consumed several mixed drinks and played pool until approximately 11:00 p.m. They then went to the Village Café. There was no evidence from witnesses who observed the two ex-Rangers that evening of any bad feelings between them.

A few minutes before 1:00 a.m. on Tuesday, September 26, the Montgomery County police responded to a 9-1-1 call that had been placed by Smith. Arriving at the apartment house, they found Smith outside, hysterical and with blood on his face, hands, and clothing.

McQueen was found seated in a metal framed chair with a mesh scoop or sling type seat. On the left side of his lap was a marijuana grinder. On the floor to the right of the chair were a bottle of beer and a television game joystick. Several feet to the front of the chair was a loop-type, gun-locking device.

Smith was arrested and was interrogated. He gave three versions of what had transpired after they left the Village Cafe. In all three versions, Smith stated that he dropped McQueen off at the apartment and continued on to his mother’s house in order to pick up laundry.

The central issue at trial was whether McQueen’s death was a murder or a suicide. The jury was so advised by both parties in their opening statements. There was expert evidence presented which concluded that McQueen’s death was a murder and there was expert evidence presented that it was a suicide.

As to McQueen’s state of mind, the State presented multiple witnesses who testified that McQueen was not depressed or suicidal. Justin Jones, who first met McQueen at Ranger indoctrination in September 2003, testified that McQueen was not at all depressed when he came home in 2006. Specifically, Jones testified, over objection, that McQueen was not unduly concerned over the DWI which had occurred in August.

After several unsuccessful attempts by the defense to introduce the testimony of the arresting officer in Georgia, toward the end of the trial, Smith produced in person Officer John Hegger. His testimony was taken out of the presence of the jury. Officer Hegger testified that, after McQueen had been arrested and brought to the police station, he had a conversation with McQueen and that, during that conversation, McQueen appeared to be depressed and stressed about having been arrested for DWI. At one point, McQueen put his hands down in his head, and he said this was the last thing he needed in his life right now.

The defense sought to admit Hegger’s testimony as evidence of McQueen’s depressed state of mind. The trial court ruled that this testimony was inadmissible.

Smith was convicted of depraved heart second-degree murder and use of a handgun in the commission of a felony. The court sentenced him to thirty years confinement for murder and to a second consecutive twenty year sentence on the handgun charge, with all but five years suspended and five years probation to be served upon release. The Court of Special Appeals affirmed.

Smith sought review by the Court of Appeals. The Court of Appeals reversed.

LAW:     Officer Hegger’s proffered testimony consisted of two types of evidence. The first was his direct observation, expressed as a “collective fact,” see Connor v. State, 225 Md. 543, 552 (1961), when he said that McQueen “basically appeared to be depressed, stressed about the situation[.]”

The second type of evidence was McQueen’s statement that, in effect, he did not need a DWI charge in addition to the other adversities in his life. The statement was offered for the truth of its content, was hearsay, and was inadmissible, unless it fell within the exclusion provided in Rule 5-803(b)(3) for “[a] statement of the declarant’s then existing state of mind…offered to prove the declarant’s then existing condition or the declarant’s future action.”

Both types of evidence must be relevant to be admissible. Rule 5–402. “There are two components to relevant evidence: materiality and probative value.” 1 McCormick on Evidence §185, at 773. “Materiality looks to the relation between the proposition for which the evidence is offered and the issues in the case.” McCormick, §185, at 773. Probative value is “the tendency of evidence to establish the proposition that it is offered to prove.” McCormick, §185, at 774.

The proposition Smith sought to prove was that the manner of McQueen’s death was suicide. Officer Hegger’s testimony needed only have a “tendency” to make that proposition “more probable.” Rule 5–401.

The probative value of Hegger’s testimony could not be determined in a vacuum, devoid of consideration of the other circumstances in the case. At the time of the Hegger proffer, the defense had produced its forensic experts’ testimony contradicting the State’s opinion evidence. One of those experts had opined that the manner of death was suicide. The Hegger evidence made it more probable, in conjunction with the opinions of the defense forensic experts, that the defense’s ultimate proposition of suicide might be accepted.

“An item of evidence, being but a single link in the chain or proof, need not prove conclusively the proposition for which it is offered. Whether the entire body of one party’s evidence is sufficient to go to the jury is one question. Whether a particular item of evidence is relevant to his case is quite another. It is enough if the item could reasonably show that a fact is slightly more probable than it would appear without that evidence.” McCormick, §185, at 776.

The proffered proof, taken along with the other evidence, was material. The DWI arrest occurred approximately 30 days prior to McQueen’s death. Thus, the State argued remoteness, which is part of the probative value aspect of relevancy.

“A homicide victim’s state of mind is unquestionably relevant to the defense theory that [the victim] committed suicide.” United States v. Veltmann, 6 F.3d 1483, 1494 (11th Cir.1993).

In Veltmann, the deceased died in a fire caused by arson. The issue was whether the fire was set by the deceased or by her husband and son to collect life insurance. The alleged victim was addicted to prescription pain killers and was an abuser of alcohol. The U.S. District court had excluded testimony of a creditor and former paramour of the alleged victim that had been offered under FRE 803(3), on which Rule 5–803(b)(3) is based. The witness had testified on deposition that a few months before she died, the victim talked about the possibility of her death, and mentioned suicide several times.” Id. at 1489.

The 11th U.S. Circuit Court of Appeals reversed, holding that the testimony “was admissible under the state of mind exception, and while conceivably cumulative, its import was such that exclusion violated defendants’ right to put on a defense.” Id. at 1489.

The court concluded that the continuity in time aspect of FRE 803(3) must be determined in light of all of the circumstances. Id. at 1494.  Applying that standard, the 11th Circuit held: “Where one threatens suicide, talks about what should be done in [the] event of her death, and dies within months under suspicious circumstances including the presence of a suicide note and other witnesses corroborating her depression and suicidal ideation,…uncertainty over the exact date of the suicide threats should [not] preclude admission of those statements to show state of mind.” Veltmann, 6 F.3d at 1494.

Where possible suicide is an issue, remoteness of evidence, under Rule 5–803(b)(3), bearing on the deceased’s state of mind, must be determined under all of the circumstances.

There were other circumstances that bore on remoteness. The State announced in its opening statement that it would prove that McQueen was not suicidal. In its case-in-chief, the State produced lay witnesses who testified, based on observations going all the way back to McQueen’s deployments in Afghanistan, that he was not depressed or suicidal.

This set a standard, for purposes of this case, as to what the State considered to be proof that was not too remote to be probative.

The State then opposed Smith’s proffer that was based on personal observations made, and statements heard, less than two months before McQueen’s death.

Indeed, after the exclusion of the Hegger proffer, the State presented, in rebuttal, three lay witnesses who testified that, while on active duty, McQueen was not depressed, even though the jury never heard the Hegger evidence that was favorable to Smith.

Thus, the circuit court abused its discretion when it concluded that the proffered testimony was too remote to be relevant.

On the issue of trustworthiness, the Court of Special Appeals has stated, “‘The special assurance of reliability for declarations of present state of mind rests … upon their spontaneity and probable sincerity. This is assured by the requirements that the declarations must purport to relate to a condition of mind or emotion existing at the time of the statement and must have been made under circumstances indicating apparent sincerity.’” Robinson v. State, 66 Md. App. 246, 260 (1986) (quoting McCormick on Evidence §292, at 695).

In Pettie v. State, 316 Md. 509 (1989), while he was an inmate at the Maryland Correctional Training Center, Pettie was charged with sexual assault on another inmate. About six hours after the victim reported the incident to the prison authorities, Pettie was found in his cell lying face down in his bunk, non-responsive but conscious, with a cut on his left wrist that bled only slightly. He had left a suicide note.

At trial, the State introduced evidence that Pettie attempted suicide, on the theory that it demonstrated consciousness of guilt. The State never introduced, directly or indirectly, any evidence of the content of the suicide note; there was no knife in Pettie’s hand or in his cell; and the wound bled only slightly. Thus, the Court concluded that “it is equally plausible, given the State’s lack of evidence, that Pettie feigned attempted suicide to invite mitigation in the sentence he then served.” Id. at 520.

From the standpoint of reliability, it was unlikely that McQueen’s statement to Hegger was false and made for the purpose of obtaining favorable treatment from Hegger. When the statement was made to Hegger, McQueen had already been arrested and taken to the police station. The fact that McQueen’s statement did not explicitly refer to suicide does not deprive it of the tendency to make suicide more probable.

For all the foregoing reasons, the proffered Hegger evidence was admissible.

COMMENTARY: The Court of Special Appeals had alternatively concluded that, if the Hegger proffer were admissible, the error in excluding it was nevertheless harmless.

“[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 State produced evidence from which the jury could find consciousness of guilt on Smith’s part based on temporarily disposing of the weapon, that he was the shooter based on the State’s forensics, that McQueen, during his military career and during his leave, never manifested depression or suicidal tendencies, and that Smith lied to the police.

There was also evidence from which the jury could find that McQueen was the shooter, based on the defense forensics, and that there was no motive for Smith to kill McQueen.

Because the relevant Hegger proffer was excluded, the State was able to argue to the jury that there was no evidence of depression or suicidal tendencies from anyone who had come in contact with McQueen.

From this evidence, it could not be concluded beyond a reasonable doubt that the error in no way influenced the verdict.