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Md. high court: Defense’s victim-blaming opening cannot be rebutted

09.28.11 HANOVER, MD. Judge Shirley M. Watts, Court of Special Appeals. (The Daily Record/Rich Dennison)

The term “‘evidence’ … does not encompass assertions that are made during opening statements,” wrote Judge Shirley M. Watts for the Court of Appeals. (The Daily Record/Rich Dennison)

A defense attorney’s opening statement blaming the victim of a violent crime does not “open the door” for the prosecutor to present evidence of the victim’s peaceful demeanor, Maryland’s top court unanimously ruled in a murderer’s appeal Friday.

Rather, the prosecution must wait for the defense to put forth evidence of the victim’s aggressiveness before making a contrary presentation in rebuttal, the Court of Appeals stated in the first opinion of its 2018-2019 term, which began Sept. 1.

The high court rendered its decision in reviewing the trial and second-degree murder conviction of David Leander Ford, whose attorney had argued in opening statements that victim Mohamed Eltahir was belligerent and Ford stabbed him in self-defense.

The prosecution invalidly — though with the trial judge’s permission — introduced testimony vouching for Eltahir’s docile personality to rebut the defense’s opening salvo, the Court of Appeals ruled.

The high court, however, upheld Ford’s conviction, saying the testimony’s improper introduction was “harmless error” that beyond a reasonable doubt had no effect on the jury’s verdict.

The Court of Appeals based its decision on Maryland criminal procedure rule 5-404(a)(2)(C), which states that “in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.”

The high court said an opening statement is not “evidence” subject to rebuttal.

“Put simply, the term ‘evidence’ – although encompassing a wide variety of  things, such as testimony, documents, or objects that are offered to provide or disprove the existence of an alleged fact – does not encompass assertions that are made during opening statements,” Judge Shirley M. Watts wrote for the court. “Such statements do not, and are not, given to prove or disprove the existence of an alleged fact, but instead are made to provide the fact-finder with a party’s overview of the case and preview of the evidence that is to be presented at trial.”

The Maryland attorney general’s office declined to comment on the high court’s decision beyond saying it is being reviewed.

Ford’s appellate attorney, Assistant Maryland Public Defender Jeffrey M. Ross, did not return a telephone message seeking comment on the decision.

During the opening statement, defense counsel told the Anne Arundel County Circuit Court jury that the younger, bigger, faster and stronger Eltahir attacked Ford in violent response to a perceived verbal insult and that Ford, reasonably believing he was in imminent danger, stabbed Eltahir in self-defense on July 8, 2015.

The prosecution then sought and received permission from the judge to put on testimonial evidence of Eltahir’s docile demeanor, saying defense counsel’s opening statement “opened the door” to testimony that the victim was not hot-tempered.

That testimony came from Barbara McQueen, who said she had seen Eltahir almost every day for six months – including the day of his slaying – and found him to be a “quiet, just overall nice person” who was “nice to everybody.”  Everett Kane, another prosecution witness, called himself a “close friend” of Eltahir, a “quiet person” who “was never, you know, violent or anything.”

Ford was sentenced to 25 years in prison, with all but 20 years suspended, and five years’ probation for murdering Eltahir.

The intermediate Court of Special Appeals upheld Ford’s conviction last December, saying the prosecution’s testimonial evidence of Eltahir’s peacefulness was permissible “rehabilitation and rebuttal” testimony in response to defense counsel’s opening statement.

But the Court of Appeals said the evidence was impermissible because the opening statement, unlike in-trial evidence, is not subject to rehabilitation and rebuttal testimony. The high court, however, upheld Ford’s conviction in light of the “plethora of evidence adduced at trial” that showed beyond a reasonable doubt that he had initiated the physical confrontation and was not acting in self-defense when he stabbed Eltahir.

The Court of Appeals rendered its decision in David Leander Ford v. State of Maryland, No. 11 September Term 2018.

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