Alexis v. State

WATTS, J. Following a trial of consolidated cases from October 4, 2010, to October 29, 2010, a jury in the Circuit Court for Prince George’s County convicted Jamaal Garvin Alexis, appellant, in case number CT08-0504X, of second-degree murder and robbery with a dangerous weapon of Raymond Brown, use of a handgun in the commission of a crime of violence, common law conspiracy to commit theft over $500, and two counts of theft over $500. 1 See Md.Code Ann., Crim. Law Art. (“C.L.”) § 2-204 (second-degree murder); C.L. § 3-403 (robbery with a ⁶³⁶ dangerous weapon); C.L. § 4-204(use of a handgun in the commission of a crime of violence); C.L. § 7-104 (theft). In case number CT09-1040B, the jury convicted appellant of solicitation to commit the murder of Bobby Ennels to prevent him from testifying in case number CT08-0504X, and solicitation to commit the murder of Bobby Ennels in retaliation for testifying before the grand jury. 2 See C.L. § 9-302(b)(2)(ii) (solicitation to induce a witness to be absent from an official proceeding to which the witness has been subpoenaed or summoned); C.L. § 9-303(b)(l) (solicitation with the intent of retaliating against a witness for giving testimony in an official proceeding). On December 14, 2010, the circuit court sentenced appellant to a total of one hundred forty years’ incarceration, as follows: As to case CT08-0504X, thirty years’ incarceration for second-degree murder; twenty years’ incarceration for use of a handgun in the commission of a crime of violence, the first five years to be served without the possibility of parole; twenty years’ incarceration for robbery with a dangerous weapon; fifteen years’ incarceration for conspiracy to commit theft over $500; fifteen years’ incarceration for one count of theft over $500 and fifteen years’ incarceration for another count of theft over $500; 3 and, as to Case No. CT09-1040B, twenty years’ incarceration for solicitation to commit murder to prevent a witness from testifying and twenty years’ incarceration for solicitation to commit murder in retaliation against a witness for testifying before the grand jury. 4 Appellant noted an appeal raising four issues, which we quote: ⁶³⁷ I. Did the [circuit] court err in disquahfying [ajppellant’s attorney, who had previously represented a State’s witness, when [appellant’s counsel had arranged for co-counsel to cross-examine the witness?

II

Did the [circuit] court err in allowing the State to introduce Amadu Jalloh’s prior testimony when the witness refused to testify at trial?

III

Did the [circuit] court err in admitting Bobby Ennels’[s] grand jury testimony on the ground that [appellant procured his unavailability at trial?

III

Did the [circuit] court err by sentencing [appellant on two counts of solicitation although there was but one incitement? For the reasons set forth below, we answer each question in the negative. We shall, therefore, affirm the judgments of conviction. FACTUAL AND PROCEDURAL BACKGROUND The acts for which appellant was convicted concerning the murder of Raymond Brown occurred on October 13, 2006, outside of a residence on Stillwater Place in Prince George’s County.

The acts concerning the murder of Bobby Ennels occurred on October 7, 2008, on Nalley Road, in Prince George’s County. Motion to Strike Appearance of Defense Counsel After his indictment, appellant’s trial was scheduled to begin on April 13, 2009. On April 1, 2009, the State filed a Motion to Strike Appearance of Defense Counsel (the “Motion to Strike”) and an accompanying memorandum of law. In the Motion to Strike, the State contended that appellant’s counsel, Harry Tun, Esq., had a conflict of interest under the Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) because he had previously represented a State’s witness, Amadu Sulamon Jalloh aka Kamara Mohamed (“Jalloh”), in a separate criminal case.

The State argued that Tun was in possession of confidential information regarding Jalloh as a ⁶³⁸ result of the prior representation. Jalloh became a witness for the State, in appellant’s case, when he contacted the State and advised that, while they were incarcerated together, appellant confessed to him that he had murdered Brown. In an affidavit accompanying the Motion to Strike, Jalloh attested that he had not waived the attorney-client privilege with Tun, and that he had filed a complaint against Tun with the Attorney Grievance Commission. On April 9, 2009, appellant filed a Memorandum of Law in opposition to the State’s Motion to Strike, advising that Tun represented Jalloh for a “brief and limited period of time” in a separate criminal case.

Appellant advised, that: (1) on December 18, 2007, Tun filed a motion for release on bond on Jalloh’s behalf and requested discovery, (2) on January 25, 2008, Tun filed a motion to sever charges in Jalloh’s matter, and (3) on February 5, 2008, Tun withdrew as counsel for Jalloh. Appellant argued that, if there were a potential conflict of interest, Tun could create a “Chinese wall” to screen himself from the conflict by not using any confidences that he may have obtained from Jalloh in representation of appellant, and by having an attorney not affiliated with his firm (Hecht) cross-examine Jalloh at trial. Appellant asserted that Jalloh had waived the attorney-client privilege by filing a complaint with the Attorney Grievance Commission against Tun, and disclosing “the details of his case in an effort to express his dissatisfaction[.]” On April 10, 2009, the circuit court conducted a hearing on the Motion to Strike. At the hearing, the State contended that Tun’s representation of appellant violated: (1) MLRPC Rule 1.7, which provides that “a lawyer shall not represent a client if the representation involves a conflict of interest”; (2) MLRPC Rule 1.8(b), titled “Conflict of Interest: Current Clients: Specific Rules”; and (3) MLRPC Rule 1.9, titled “Duties to Former Clients.” The State asserted that Tun’s offer to build a “Chinese wall” violated his duty of loyalty to a former client.

The State argued that there was a “relationship” between Tun and Hecht, the attorney Tun argued he ⁶³⁹ could use to cross-examine Jalloh, that “make[s] them similar to partners in a law firm.” On behalf of appellant, Tun contended that he and Hecht “[were] not in the same firm[,]” did not have keys to each other’s offices, and were not the equivalent of partners in a law firm. Tun argued that a “Chinese wall” would be effective because Hecht did not have access to his files. Tun asserted that, by filing a complaint against him with the Grievance Committee, Jalloh had waived any privilege. Tun maintained that appellant had knowledge of the alleged conflict and was “willing to waive that conflict on his part so that he can have [the] attorney of his choice.” At the conclusion of the hearing, ruling from the bench, the circuit court granted the motion, stating as follows: THE COURT: All right.

On the State’s motion to strike [ ] Tun as attorney for [appellant], for some reason, 1 don’t know what the statistical likelihood of this happening is, the [appellant] in this case and [ ] Tun’s former client, [ ] Jalloh, were placed in the same jail cell [at] the County Correctional Center and apparently have some conversations which I believe the State intends to use, if I’m not mistaken. [PROSECUTOR ENGEL]: Yes, Your Honor. THE COURT: While [appellant] has waived whatever conflict [ ] Tun might have, [ ] Amadu ... Jalloh—thank you— has not and, in fact, takes significant exception to [ ] Tun continuing to participate in this case when he, in fact, is going to be a witness for the State. The conflict is a significant one and 1 think we all agree there is, in fact, conflict.

There is conflict with the duty of loyalty. I appreciate [] Tun represented him for a short period of time but, I think, that duty of loyalty continues and, in fact, there [ ] really is truly a conflict were this case to go to trial with [ ] Tun at the table. To say that we can create a Chinese wall, a masonry wall, a brick or a block wall that solves this problem I think is folly. I just don’t believe that we can do that.

Having said ⁶⁴⁰ all that, accordingly, I’m going to direct the Clerk to strike [ ] Tun’s appearance. Motion to Admit the Testimony of Bobby Ennels On April 8, 2009, the State filed a “Motion to Admit Testimony Under Maryland Rule of Evidence 5-804(a) and Courts and Judicial Proceedings Article [ (“C.J.P.”) ] § 10-901” (the “Motion to Admit Testimony”), requesting that the circuit court allow Ennels’s grand jury testimony to be admitted at trial. The State contended that appellant “engaged in, directed or conspired with Rashadd Alexis, his brother[,] and others known to the State, to murder Bobby Ennels so that he could not testify against him at trial.” On August 4, 2009, and August 5, 2009, the circuit court held a hearing on the Motion to Admit Testimony. 5 After hearing testimony and the argument of counsel, ruling from the bench, the circuit court granted the State’s Motion to Admit Testimony, finding as follows: In weighing all of the pluses and the minuses and the great deal of testimony and the evidence that we have heard, it would be difficult to have to overlook the obvious of what transpired in this case. So we’re going to make the finding, by a clear and convincing evidence standard, that, in fact, State’s Exhibit 47 should, in fact, be allowed for use at the trial, the first trial that [appellant] faces with regard to the murder of [Raymond Brown].

It would appear from the facts in this ease that this was a cold, calculated attempt to silence a witness in a murder ⁶⁴¹ case, that resulted not only in the murder of the witness, that is, Bobby Ennels, but also in the murder of [ ] Anthony Cash, III, and the wounding of Frances Lammons, however sad that might be. Trial At trial, as a witness for the State, Danielle Steele Brown, the wife of the deceased, Raymond Brown, testified that in October 2006 she was living on Stillwater Place in Prince George’s County with her husband. On the morning of October 13, 2006, at approximately 2:20 a.m., the Browns were awakened by the sound of Mr. Brown’s car alarm. From a window", Mrs. Brown saw a tow truck towing Mr. Brown’s car away.

The Browns got into Mrs. Brown’s ear and drove to the entrance of the housing community to locate a sign containing the name of the towing company for the property. When the Browns reached the entrance to the community, the tow truck was there with Mr. Brown’s vehicle attached to it. Mr. Brown got out of his car and approached a man who was standing outside of the tow truck. Mrs. Brown testified that, as Mr. Brown approached, the man began to run and gunfire came from the driver’s side of the tow truck.

After the gunfire, Mrs. Brown ran to Mr. Brown who was lying injured on the ground. The tow truck drove away with Mr. Brown’s car still attached to it. Another car that was parked on the other side of the parking lot also departed. Mrs. Brown called 911 and paramedics arrived within minutes.

Mr. Brown was transported to Prince George’s Hospital Center, and died as a result of a gunshot wound to the chest. Approximately six months after the shooting, detectives from the Prince George’s County Police Department showed Mrs. Brown a photographic array. Mrs. Brown identified Edmonds as the man she saw standing next to the tow truck, who was not the shooter. Mrs. Brown told detectives that Mr. Brown’s car was a black Chrysler 300 and that when she retrieved the car from the police impound lot, the wheels were missing. ⁶⁴² The State requested and was granted permission to read the transcript of Ennels’s grand jury testimony of March 6, 2008, to the jury over the defense’s objection.

Before the grand jury, Ennels testified that: On October 13, 2006, he was with a friend, Edmonds, when they encountered appellant, who was driving a black tow truck with a black Chrysler attached to the back of it. The driver’s side window of the tow truck was shattered. Edmonds asked appellant what happened to the driver’s side window of the tow truck. Appellant advised Edmonds that “the guy reached” and he (appellant) shot through the window.

According to Ennels, appellant said he did not know if the shot hit “the guy” because he pulled off in the tow truck. On October 14, 2008, Ennels overheard a conversation between appellant and Brian Barnes, in which Barnes told appellant that he knew appellant shot and killed someone the night before. Appellant told Ennels that he shot “the guy” but he did not know whether he had killed him. Appellant said that he was going to dispose of the “rims” from the vehicle and the weapon.

As a witness for the State, Matthew Coppedge testified that he had known appellant since 2002, and that, a few times, he and appellant stole “[r]ims” together using a Snatchman tow truck. According to Coppedge, with a Snatchman tow truck, a car can be towed without the driver getting out to chain the ear to the truck. Coppedge testified that he heard of the death of “Scotty Beats” 6 and telephoned appellant to ask “what he did.” Later the same day, Coppedge met appellant in their neighborhood. During this meeting, appellant told Coppedge that he and Edmonds had been stealing a car in Largo and Ennels was acting as the look out.

Appellant told Coppedge that while they were stealing the car “somebody came out and [ ] was about to do something to [Edmonds]” so he (appellant) reacted. Coppedge testified that appellant said that he shot a man through the glass of the driver’s side window of the tow truck. Appellant said that he and Ed ⁶⁴³ monds took the wheels off the vehicle and sold them for a thousand dollars. As a witness for the State, Barnes testified that he had known appellant since high school and lived several houses away from appellant.

According to Barnes, he and appellant had a history of stealing cars together. Barnes testified that, in October 2006, he showed appellant the location of a Ford Snatchman tow truck. On the night of October 12, 2006, at approximately midnight, Barnes spoke to appellant to “get” a car for him. Appellant responded that he was busy and would call Barnes back later, but appellant failed to return Barnes’s call.

On October 13, 2006, Barnes heard that Brown had been killed and that the killing involved a tow truck. At approximately 3:00 p.m., Barnes spoke with appellant and asked whether he killed Brown. Barnes testified that appellant told him that he had to kill Brown because “[t]he dude was going to kill [Edmonds].” Appellant explained that Edmonds was strapping Brown’s car to the tow truck and he (appellant) was attempting to protect Edmonds because the man was going to kill Edmonds. Barnes testified that he had known appellant to carry various types of guns and that appellant’s .40 caliber handgun was missing after Brown’s murder.

On October 13, 2006, law enforcement officers recovered a stolen Snatchman tow truck that had been abandoned in an industrial area. The ignition of the tow truck was damaged and there was a cartridge casing found inside the cabin of the truck. On the same day, October 13, 2006, law enforcement officers recovered the Browns’ Chrysler 300 vehicle that had also been abandoned. The vehicle had no tires, the driver’s side door window was broken, and there was debris, including lug nuts on the ground around the car.

As a witness for the State, Elores Clark, a fingerprint analyst of the Prince George’s County Police Department, identified a latent fingerprint lifted from the hood of the vehicle as that of Edmonds. As a witness for the State, Edmonds testified that he stole cars with appellant and Ennels. Edmonds testified that, on ⁶⁴⁴ October 12, 2006, he, Ennels, and appellant went to Fairmount Heights to meet Ronnell Davis, Darnell Davis, Cortez Mallory, and Darrell, whose last name Edmonds did not know, people with whom they “hung out” and stole cars. After meeting, the group went with Darnell in a tow truck and stole a vehicle in Oxon Hill.

In the process of stripping the stolen vehicle, they discovered that they could not find the wheel locks, i.e. they could not get the wheels off. As a result, Ronnell, Darnell, Darrell, and Mallory left. Appellant, Edmonds, and Ennels drove to Largo, with appellant driving the tow truck and Edmonds traveling in the backseat of Ennels’s vehicle while Ennels drove. Edmonds testified that he fell asleep during the drive and “the next thing [he] kn[e]w” Ennels awakened him.

He got out of the ear and walked up to a Chrysler 300 vehicle which was already attached to the back of the tow truck. According to Edmonds, he went under the hood and disabled the alarm. Edmonds testified that he was not wearing gloves but that appellant and Ennels were. According to Edmonds, a white Maxima vehicle approached them.

As the vehicle came closer, Edmonds ran to Ennels’s car and, as he did, he heard a “slight pow” and glass breaking. Ennels arid Edmonds drove to a location off of Walker Road where they met appellant in the tow truck. Edmonds testified that he noticed the tow truck’s window was broken, which it had not been previously. Edmonds asked appellant whether the man in the white Maxima shot at them, and appellant did not respond.

Edmonds, appellant, and Ennels dropped the “rims” off at appellant’s house and left the tow truck two streets away after wiping it clean of fingerprints. Edmonds testified that the next day he had a conversation with appellant at Barnes’s house. Appellant said that he shot Brown because he saw him (Brown) get out of the car with something in his hand. Edmonds testified that Ennels was present during this conversation and “freaked out.” Edmonds testified that appellant asked him if he thought Ennels might “snitch[,]” and he told appellant that he did not think so. ⁶⁴⁵ Edmonds testified that approximately one month after the conversation at Barnes’s house, appellant asked him “do [you] think [I] should kill [Ennels] if [Ennels] tried to snitch.” According to Edmonds, he again responded that he did not think that Ennels would “snitch.” Edmonds testified that appellant nonetheless suggested that Edmonds take Ennels to a night club, get him drunk, pull up to a stop light, and he (appellant) would do the rest.

Edmonds testified that he told appellant he would not do that. Edmonds testified that, in March 2007, he sold a burgundy Oldsmobile Aurora to Rashadd Alexis, appellant’s brother. According to Edmonds, Rashadd owned the vehicle for a “[c]ouple months[,]” after which Edmonds purchased the car back from Rashadd. As a witness for the State, Lammons testified that, on October 6, 2008, she spoke on the telephone with Ennels, whom she described as a friend.

On the same day, Ennels and Anthony Cash picked Lammons up from her house and drove to Nalley Road. Upon arriving at Nalley Road, Ennels made a telephone call and said to the recipient of the call, “You all can come on down[.]” After approximately two minutes, two men approached the car and shot Ennels. Lammons testified that, before being shot, Ennels said, “You all don’t have to worry about nothing[;] It’s okay. It’s cool.” After being shot, Ennels put the car into reverse and crashed into a tree.

Lammons and Cash got out of the car and ran. Lammons was shot in the elbow while running away. Ennels was found dead in the driver’s seat of the car. Cash was found in the driveway of a home at 406 Nalley Road.

Cash died as a result of gunshot wounds to the back, forearm, and knee. A black skull cap found in the backyard of 404 Nalley Road contained a mixed DNA profile, to which Rashadd was determined to be the major contributor. Law enforcement officers determined that the last telephone number that called Ennel’s cellular telephone was (202) 421-5787. This telephone number was associated with a prepaid telephone that was purchased at ⁶⁴⁶ Electroworld in Landover.

According to Detective Turner of the Prince George’s County Police Department, thirteen telephone calls were made from (202) 421-5787 to Ennels’s cellular telephone between September 23, 2008, and October 7, 2008, the day of Ennels’s murder. The telephone calls utilized cellular telephone towers near Swan Terrace. Detective Turner testified that a cousin and aunt of the Alexis family lived on Swan Terrace and that Rashadd’s girlfriend lived a half mile from Swan Terrace. Lammons testified that one of the two men who came to the car was “brown skin[ned with a] short haircut[ and t]he second was [] brown skin[ned] with dreads.” According to Lammons, the man with the short haircut had the gun.

While Lammons was in the hospital, detectives of the Prince George’s County Police Department showed her a photographic array, and Lammons selected a picture of Barnes as someone who looked familiar to her. Officer Nolasco of the Prince George’s County Police Department testified that on October 7, 2008, at about 1:00 a.m., he observed two vehicles speeding from the area of Nalley Road and Twining Court on Hill Oaks Road. Officer Nolasco stopped one of the vehicles. According to Officer Nolasco, the driver of the vehicle he stopped was Rashadd.

Officer Nolasco testified that Rashadd was extremely nervous and appeared to have blood on his shirt. Officer Turri of the Prince George’s County Police Department testified that, although Officer Nolasco stopped Rashadd not far from the location in which Ennels and Cash had been murdered, a detective at the scene of the shooting ordered that Rashadd be released. The car driven by Rashadd, a Buick Regal, was registered to Deaundrey Shropshire. The State introduced audiotapes of telephone calls made by appellant while detained at the Prince George’s County Detention Center.

An audiotape of a telephone call that occurred on October 3, 2008, between appellant and Shropshire was introduced into evidence as State’s Exhibit 100. In the conversation, appellant asked, “What is going on with my M?” and ⁶⁴⁷ Shropshire responded, “You still haven’t told me what you want me to do with that [guy].” Jalloh’s Refusal to Testily Jalloh testified as a witness for the State at the hearing on the Motion to Admit Testimony, but refused to testify for the State at trial. At trial, when Jalloh was called to testify, the following colloquy occurred outside of the presence of the jury: [PROSECUTOR]: Sir, my question is, are you prepared to offer testimony in this trial today? [JALLOH]: No. [PROSECUTOR]: And if I asked you any question regarding the substance of any information you have about this case, -will you answer them before this Court today? [JALLOH]: No. [PROSECUTOR]: If the Court were to order you to answer questions, would you comply with that order and answer questions? [JALLOH]: No. [PROSECUTOR]: Sir, if you’re held in contempt, will that affect your decision as to whether to testify or not? [JALLOH]: No. [PROSECUTOR]: And assuming that the Judge holds you in contempt for failing to obey his order, that is, compel you to testify, if you’re held for a week, two weeks, a month, would that change your decision to testify? [JALLOH]: It doesn’t change anything. THE COURT: All right.

If I ask you those same questions, your answer would be the same? [JALLOH]: Yes, Your Honor. THE COURT: I’ll make the finding he’s in contempt of court for refusing to testify. The circuit court elected to have Jalloh invoke his choice not to testify in front of the jury. The following exchange took place before the jury: ⁶⁴⁸ [PROSECUTOR]: [H]ave you had an opportunity to speak to your counsel about the consequences of not testifying today? [JALLOH]: Yes, sir. [PROSECUTOR]: And is it your intention to refuse to testify before this Court today? [JALLOH]: Yes, sir. [PROSECUTOR]: And are you aware that if you refuse to testify, the Judge could order you to actually testify today? [JALLOH]: Yes, sir. [PROSECUTOR]: And if you fail to obey that order, you can be held in contempt of court? [JALLOH]: Yes, sir. [PROSECUTOR]: And you understand that if you’re held in contempt of court, the Judge can sentence you to a sentence that’s consecutive to any time that you’re currently serving at this time? [JALLOH]: Yes, sir. [PROSECUTOR]: And you understand that? [JALLOH]: Yes, sir. [PROSECUTOR]: Is it your intention to testify before this jury today and before this Court today? [JALLOH]: No. The circuit court asked if appellant’s counsel had any questions, and appellant’s counsel stated, “Satisfied, Your Honor.” The circuit court stated, “All right.

I have made a finding, which I’ll make it subsequent, he has refused to testify, that he is in fact in contempt of court.” The circuit court asked Jalloh, ‘Tour answers would be the same if I asked them as well?” Jalloh responded, ‘Tes, your Honor.” The circuit court stated, “All right. And you would be in contempt of court having refused to testify. I’ll make that finding.” Over appellant’s objection, the circuit court allowed the prosecutor to read the transcript of Jalloh’s prior testimony ⁶⁴⁹ into the record in the presence of the jury. Jalloh’s grand jury testimony included the following: Jalloh had been incarcerated with appellant and Donnell Hunter, also known as “Fat Rat,” at the Prince George’s County Detention Center.

On one occasion, while incarcerated, Jalloh heard Fat Rat tell appellant that “the only way you can go home is to kill the witness.” Jalloh informed his attorney of the conversation and his attorney arranged a meeting between Jalloh and an Assistant State’s Attorney. During the meeting, Jalloh told the Assistant State’s Attorney that appellant had confessed to him that he killed Brown. Jalloh testified that, at some point after his meeting with the Assistant State’s Attorney, appellant told him that he was going home because “[his] brother got rid of the witness.” According to Jalloh, appellant told him that two men were killed and a girl had been shot. As a witness for the defense, Detective Matthew Barba of the Prince George’s County Police Department testified that Lammons picked a photo of Barnes out of a photo book as a person that “resembled” a man present at the October 2008 incident, and that, though she was shown a photograph of Rashadd, she did not identify or recognize him.

As a witness for the defense, Shropshire testified that he was best friends with Rashadd and the two shared an apartment in 2008. According to Shropshire, in October 2008, he (Shropshire) was employed as a custodian at a public school, and worked until 11:30 p.m. or midnight. Shropshire testified that he allowed Rashadd to use his 1999 Buick Regal for work on numerous occasions. Shropshire testified that he saw Rashadd the day after Ennels was murdered and Rashadd did not appear nervous or upset, and that he (Shropshire) did not see bloody clothing or a gun in their apartment.

On his own behalf, appellant testified, in essence, that he had been framed by Barnes. Appellant testified that he was not present at the theft of Brown’s vehicle and that the other witnesses were all lying. According to appellant, he and Barnes had a significant dispute in which Barnes believed that appellant had “shot up” his house, and, thereafter, Barnes ⁶⁵⁰ broke appellant’s jaw. Appellant testified that his truck had been stolen and that he believed Barnes to be responsible for the theft.

According to appellant, Barnes had threatened that appellant would “catch a serious charge” if he reported the truck stolen. Appellant’s counsel played taped conversations between Jalloh and his wife to challenge Jalloh’s testimony at a pretrial motion hearing that he (Jalloh) had conversations with his wife concerning whether to come forward and testify against appellant. Jury Instructions—Solicitation Prior to closing arguments, the circuit court instructed the jury as to solicitation as follows: The defendant is charged with two separate counts of the crime of Solicitation to Commit Obstruction of Justice. That is preventing witness testimony or retaliation for testimony.

A criminal solicitation is an effort to persuade another person to commit a crime. In order to convict the defendant of Solicitation, the State must prove, one, that the defendant urged, advised, induced, encouraged, requested, or commanded another person to commit Obstruction of Justice by Preventing Witness Testimony and/or Obstruction of Justice in Retaliation for Testimony; and two, that at the time the defendant made the oral or written efforts to persuade another person to commit Obstruction of Justice by Preventing Witness Testimony and/or Obstruction of Justice by Retaliation for Testimony, the defendant intended that the Obstruction of Justice Preventing the Witness Testimony and/or Obstruction of Justice for Retaliation for Testimony be committed. The crime of Solicitation is in the asking. It is not necessary that the Obstruction of Justice Preventing the Witness Testimony and/or Obstruction of Justice Retaliation for Testimony actually be committed. ⁶⁵¹ Sentencing On December 14, 2010, the circuit court held the sentencing hearing.

At sentencing, as to the merger of the convictions for solicitation, appellant’s counsel argued as follows: With regards to the second case, [appellant] was found guilty of two offenses which the lesser charge would merge with the second. That would be the solicitation to obstruct justice by retaliation for testimony of [] Ennels would merge with the solicitation to obstruct justice and murder of [ ] Ennels. In response, the State argued: With respect to the two solicitations, Your Honor, as the Court instructed the jury in its instruction, the solicitation is in the asking. And so it has to be asked two separate times, to retaliate and to prevent.

In addition, Your Honor, they are two separate criminal offenses. One is under Section 302 and the other is under Section 9-303. Third, they refer to two separate aspects. One is retaliation for testifying against the grand jury.

The other is an inducement to not testify at trial. Fourth, Your Honor, they refer to two separate dates; one being March of '08 for the grand jury and the second being the October 2010 eventual trial. The circuit court denied the request for merger. DISCUSSION I. Striking of Defense Counsel (1) Contentions Appellant contends that the circuit court erred in granting the Motion to Strike, and argues that, as a result, he was denied the right to the attorney of his choice.

Appellant asserts that the Sixth Amendment to the United States Con ⁶⁵² stitution and Article 21 of the Maryland Declaration of Rights set forth the right to assistance of counsel in a criminal prosecution and include a defendant’s right to be “represented by counsel of his own selection.” Appellant acknowledges that, in Wheat v. United States, 486 U.S. 153, 164 , 108 S.Ct. 1692 , 100 L.Ed.2d 140 , reh’g denied, 487 U.S. 1243 , 108 S.Ct. 2918 , 101 L.Ed.2d 949 (1988), the Supreme Court recognized “a presumption in favor of [a [defendant’s] counsel of choice,” but held that the presumption is rebuttable. Relying on State v. Goldsberry, 419 Md. 100 , 18 A.3d 836 (2011), appellant maintains that the circuit court failed to “properly contemplate and apply the relevant factors when denying [ ] his counsel of choice.” Relying on Holloway v. Arkansas, 435 U.S. 475 , 98 S.Ct. 1173 , 55 L.Ed.2d 426 (1978), appellant contends that a defendant “is entitled to waive his right to conflict-free counsel.” Appellant asserts, however, that “the [circuit] court never inquired of [him] whether he was willing to waive his right to conflict free counsel, or whether he had discussed the issue with [ ] co-counsel who was not operating under a conflict or potential conflict.” Appellant maintains that, “[e]ven if the [circuit] court properly determined that the potential for conflict was great, the [circuit] court entirely failed to give consideration to [ ] Tun’s suggestion that he only be disqualified from cross-examining [ ] Jalloh, and not from the entire case.” Appellant contends that “where it would be particularly unfair to the litigation client to require it to choose between forgoing cross-examination of an important adverse witness ... on the one hand, and replacing trial counsel after the litigation is long under way, on the other [hand,]” a “satisfactory solution may be the retention of another lawyer solely for the purpose of examining the principal lawyer’s client.” The State responds that the circuit court properly exercised its discretion in granting the motion to strike. The State contends that Tun had a previous relationship with Jalloh, and that, pursuant to Wheat , appellant may not insist “on counsel ⁶⁵³ of an attorney who has a previous or ongoing relationship with an opposing party[.]” The State asserts that Jalloh provided Tun with confidential information while Tun represented him, that Jalloh refused to waive his attorney-client privilege, and that it was reasonable for the circuit court to disqualify Tun on this basis. The State maintains that Tun’s knowledge of “recent, confidential information about [] criminal charges against Jalloh” would have been “unfair” to the State at trial.

The State asserts that waiver by appellant would have been “ineffective in curing the impropriety” because “he [was] not the party prejudiced.” The State contends that the Sixth Amendment right to choose one’s own counsel is not absolute, and that a trial court may disallow a choice of counsel that would “create serious risk of conflict of interest[.]” The State argues that, in light of Jalloh’s failure to waive his attorney-client privilege, the circuit court “reasonably concluded that there was a showing of a serious potential for conflict.” The State maintains that MLRPC Rules 1.7 and 1.9 prohibit Tun’s representation of Jalloh because appellant’s and Jalloh’s matters are “substantially related.” The State contends that Goldsberry was decided more than two years after the circuit court’s grant of the motion to strike, and that appellant identifies “no authority indicating that it is retroactive.” Alternatively, the State argues that, if Goldsb&rry is applicable, “the circuit court’s actions complied with the requirements of [the] ease” because the circuit court held a hearing, heard from both sides, and made the requisite findings. The State asserts that imposition of a “Chinese wall” would not have remedied the conflict, because it would not have remedied the “adversarial advantage” given to appellant through Tun’s knowledge of confidential information about Jalloh. In a reply brief, relying on Whorton v. Bockting, 549 U.S. 406 , 127 S.Ct. 1173 , 167 L.Ed.2d 1 (2007), and State v. Daughtry, 419 Md. 35 , 18 A.3d 60 (2011), appellant contends that the ⁶⁵⁴ Court of Appeals’s holding in Goldsberry is applicable to this case because the case was pending appeal at the time Golds-berry was decided. Appellant argues that “the record does not demonstrate that the [circuit] court contemplated all of the relevant [Goldsberry ] factors” because the circuit court failed to: (1) inquire as to whether he would waive his right to conflict-free counsel; (2) consider whether having co-counsel cross examine Jalloh would uphold “the ethical standards of the profession”; or (3) consider the likelihood that Jalloh would not actually testify at trial.

(2) Standard of Review We review a circuit court’s decision regarding the disqualification of counsel under the abuse of discretion standard. See Wheat, 486 U.S. at 163 , 108 S.Ct. 1692 (The Supreme Court stated that the trial court did not exceed the “broad latitude which must be accorded it” in considering whether counsel had been properly disqualified.). (3) Law Right to Counsel of Choice The Sixth Amendment to the United States Constitution provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right to ... have the Assistance of Counsel for his defen[s]e.” U.S. Const, amend.

VI

Article 21 of the Maryland Declaration of Rights provides, “That in all criminal prosecutions, every man hath a right to ... be allowed counsel[.]” Md. Dec. of R. art. 21. “The right to counsel includes the right of a defendant, who does not require court-appointed counsel, to select the counsel of his or her choosing.” Goldsberry, 419 Md. at 117-18 , 18 A.3d 836 (citations omitted). In Goldsberry, id. at 118, 18 A.3d 836 the Court of Appeals explained that the right to counsel of choice is qualified, stating: It is subject to the trial court’s “independent interest in ensuring that criminal trials are conducted within the ethical ⁶⁵⁵ standards of the profession and that legal proceedings appear fair to all who observe them.” Wheat, 486 U.S. at 160 [ 108 S.Ct. 1692 ]; accord Moore v. State, 390 Md. 343, 405 , 889 A.2d 325, 362 (2005) (stating that a defendant’s right to counsel of choice “will not be permitted to frustrate[ ] the [ethical and] orderly administration of criminal justice”). This right to counsel, though protected by a presumption in favor of a defendant’s counsel of choice, can be overcome. Wheat, 486 U.S. at 164 [ 108 S.Ct. 1692 ].

The presumption can be overcome if, for example, the defendant’s attorney “has a previous or ongoing relationship with an opposing party.” Id. at 159 [ 108 S.Ct. 1692 ]. And it can be overcome, “not only by a demonstration of actual conflict but by a showing of a serious potential for conflict.” Id. at 164 [ 108 S.Ct. 1692 ]. (Alterations in original). In Wheat, 486 U.S. at 163-64 , 108 S.Ct. 1692 , the Supreme Court affirmed the trial court’s denial of Wheat’s request to substitute his original counsel with counsel representing two of his codefendants.

Although the Supreme Court acknowledged that a defendant may waive the right to conflict-free representation, it ultimately determined that a trial court may decline to grant a waiver if it finds actual conflict. Id. at 162 , 108 S.Ct. 1692 . The Court concluded: [T]he [trial] court must be allowed substantial latitude in refusing waivers of conflicts of interest not only in those rare cases where an actual conflict may be demonstrated before trial, but in the more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses. Id. at 163 , 108 S.Ct. 1692 .

In Wheat, id. at 164 , 108 S.Ct. 1692 the Court stated that the proper balance is struck when “the [trial c]ourt [] recognize[s] a presumption in favor of [the defendant’s] counsel of choice,” which “may be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict.” ⁶⁵⁶ In Goldsberry, 419 Md. at 123-24 , 18 A.3d 836 the Court of Appeals discussed the framework to be used by the trial courts in determining whether to disqualify a defendant’s counsel of choice based on a conflict of interest, stating: [B]efore a trial court is permitted to disqualify a criminal defendant’s privately obtained counsel (regardless of whether counsel is the defendant’s only attorney or one of several on the defense team), the court must conduct a hearing on the matter, scrutinize closely the basis for the claim, and make evidence-based findings to determine, based on factors such as those outlined in [People v.] Ortega [ 209 Ill.2d 354 , 283 Ill.Dec. 530 ], 808 N.E.2d [496], 502 [(2004)], whether there is actual or serious potential for conflict that overcomes the presumption the defendant has to his or her counsel of choice. The record must reflect that the trial court contemplated relevant factors in conducting the test that balances the right to one’s counsel of choice against the necessity to uphold the ethical standards of the profession that ensure that legal proceedings appear fair to all who observe them. (Internal quotation marks and some citations omitted). The Court of Appeals explained the “relevant factors” that may be considered by a trial court in conducting the balancing test, “among all other factors relevant to the conflict,” including: [T]he likelihood that defense counsel will have divided loyalties; the State’s right to a fair trial; the appearance of impropriety should the jury learn of the conflict; and the likelihood that defense counsel’s continued representation will provide grounds for overturning the conviction.

Id. at 123, 18 A.3d 836 (citing Ortega, 283 Ill.Dec. 530 , 808 N.E.2d at 502 .) Retroactive Application of Court Decisions In Daughtry, 419 Md. at 77 , 18 A.3d 60 the Court of Appeals addressed the issue of prospective versus retrospective application of an appellate decision as follows: ⁶⁵⁷ As explained in American Trucking Ass’ns, Inc. v. Goldstein, 312 Md. 583, 591 , 541 A.2d 955, 958-59 (1988), “[i]n the overwhelming majority of cases, a judicial decision sets forth and applies the rule of law that existed both before and after the date of the decision____[I]n the ordinary case, no issue of a ‘prospective only’ application arises.” Where, however, a decision of this Court with regard to a constitutional provision, a statute, or a common law principle, is overruled on the ground that the decision represented an erroneous interpretation or application of the constitutional provision, statute, or common law principle, the question of whether the new ruling should be applied prospectively only is governed by the principles set forth in Owens-Illinois [, Inc.] v. Zenobia, 325 Md. 420, 470-72 , 601 A.2d 633, 658 (1992).... Walker v. State, 343 Md. 629, 637 , 684 A.2d 429, 432-33 (1996). (Footnotes and some internal citations omitted) (alterations in original). 7 The Court of Appeals explained, that, generally, “prospective application of a holding applies also to ‘all other pending cases where the relevant question has been preserved for appellate review.’ ” Id. at 78 n. 26, 18 A.3d 60 (citation). Waiver of Conflict of Interest In U.S. v. Fulton, 5 F.3d 605, 612, 614 (1993), the United States Court of Appeals for the Second Circuit reversed the conviction of the defendant because the trial court failed to disqualify the defendant’s counsel in a case where a state’s witness had made accusations of criminal conduct against the ⁶⁵⁸ defendant’s counsel, though the defendant waived the conflict at trial.

In Wheat, 486 U.S. at 155-57 , 108 S.Ct. 1692 , the defendant was denied his attorney of choice because the attorney had a possible conflict of interest due to his representation of persons charged as co-conspirators. Although all of the defendants in Wheat were willing to waive the right to conflict-free counsel, the Supreme Court held that this was not always sufficient, because “[fjederal courts have an independent interest in ensuring that trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them.” Id. at 160 , 108 S.Ct. 1692 . The Supreme Court acknowledged that rules of professional responsibility “impose limitations on multiple representation of clients.” Id. The Court stated, “Not only the interest of a criminal defendant but the institutional interest in the rendition of just verdicts in criminal cases may be jeopardized by unregulated multiple representation.” Id.

Maryland Lawyers’ Rules of Professional Conduct MLRPC Rules 1.7, 1.8, and 1.9 govern Maryland attorneys’ legal and ethical duties with respect to conflicts of interest. Rule 1.7, which provides the general rule for conflict of interest issues, states: (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a conflict of interest. A conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a conflict of interest under paragraph (a), a lawyer may represent a client if: ⁶⁵⁹ (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (4) each affected client gives informed consent, confirmed in writing.

Rule 1.8 sets forth the duties owed to a current client by his or her attorney. Rule 1.9, on the other hand, entitled “Duties to Former Clients,” provides: (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client. (4) Analysis Returning to the case at hand, we are convinced that the circuit court properly granted the State’s Motion to Strike.

We address initially the State’s argument that the Court of Appeals’s holding in Goldsberry is inapplicable. In Goldsberry , the Court of Appeals’s description of the factors to be considered in determining a conflict of interest does not overrule prior precedent or statutory authority. The procedure set out in Goldsberry is derived from the Supreme Court case of Wheat . In Daughtry, 419 Md. at 78 n. 26, 18 A.3d 60 ⁶⁶⁰ the Court of Appeals explained that generally, “prospective application of a holding applies to ‘all other pending cases where the relevant question has been preserved for appellate review.’ ” (Citation omitted).

We need not explore the Zenobia principles to conclude that Goldsberry is applicable to the case. Here, as required by Goldsberry , the circuit court held a hearing on the Motion to Strike, and “serutinize[d] closely the basis for the claim” by hearing extensively from both sides on the issue and taking evidence. Goldsberry, 419 Md. at 123 , 18 A.3d 836 . The circuit court found that appellant “waived whatever conflict [ ] Tun might have,” but that Jalloh “ha[d] not[,]” and that Jalloh “takes significant exception to [ ] Tun continuing to participate in this case when he, in fact, is going to be a witness for the State.” As such, the circuit court determined that there was “a conflict with the duty of loyalty.” The record reflects that, as described in Ortega, 283 Ill.Dec. 530 , 808 N.E.2d at 502 , the circuit court considered the likelihood that appellant’s counsel would have divided loyalties.

Specifically, the circuit court observed that “[t]here [was a] conflict with the duty of loyalty” and that it was “a significant one[.]” The circuit court acknowledged that Tun represented Jalloh “for a short period of time” but found that the “duty of loyalty continues[.]” The circuit court considered Tun’s suggested remedy of utilizing other counsel to cross-examine Jalloh. The circuit