Armstead v. State

JAMES A. KENNEY, III, J. (Retired, Specially Assigned). Appellant, Kevin Armstead a/k/a Kevin Armstaed, was indicted in the Circuit Court for Baltimore City and charged with conspiracy to commit murder, murder, use of a handgun in commission of a felony and crime of violence, and wearing, carrying and transporting a handgun. A jury acquitted appellant of first degree murder and the handgun offenses, but convicted him of second degree murder and conspiracy to commit murder.

The court then sentenced appellant to thirty years for second degree murder and to a consecutive sentence of life for conspiracy to commit murder. Appellant timely appealed and presents the following questions for our review: I. Did the trial court fail to properly exercise discretion and/or abuse its discretion in refusing to order a presen-tence investigation report and in proceeding to sentencing immediately following verdict despite defense counsel’s assertion that she needed time for preparation?

II

Does the record fail to reflect that Appellant was convicted of conspiracy to commit murder in the first degree?

III

Did the trial court err in excluding evidence of Jamal Fulton’s plea agreement and that he testified at a trial at which he testified inconsistently with the account of Leroy Simon in the present case?

IV

Did the trial court err in admitting evidence that a key State’s witness had been threatened and in denying a related motion for mistrial? ⁶⁰⁵ Y. Was the evidence legally sufficient to sustain a conviction for conspiracy to murder? For the following reasons, we shall affirm the judgment of the circuit court. BACKGROUND On March 20, 2007, Ricardo Paige was found lying dead on the living room floor of his residence at 502 East 43rd Street in Baltimore City, Maryland, having suffered multiple gun shot wounds. He was discovered by his daughter, Deneen Woods, and his grandson, Ricardo McDonald.

Woods testified at trial that she had seen appellant, also known as “Muggs,” on the block on prior occasions with Fulton, who she knew as “Nube,” and with Trendon and Tremaine Washington, twin brothers, both of whom she knew as “Twin.” Fulton lived in the house next door, 500 East 43rd Street. Drugs were a “big problem” with Fulton. On the Friday before Woods’s father was murdered, Fulton came to 502 East 43rd Street and argued with Paige. Fulton told Woods that her father was “making his spot hot.” Woods responded by telling Fulton that she did not want any drugs to be around her father, and Fulton replied that “he would not say nothing else to [her] dad.” At some point after Paige’s death, Woods spoke to a person in the neighborhood she knew as “Lurch.” Lurch provided Woods with some information, and Woods conveyed that information to Detective James Lloyd.

Leroy Simon testified that he is known as “Lurch” and that he knew Paige through Woods. In late March 2007, intending to exchange drugs for sex, he was with a woman behind the victim’s residence. At that time, he saw appellant, Fulton, known to him as “Nuke,” and “Twin” and another unidentified individual near Paige’s house. He observed appellant go into Paige’s house first, and then he heard some “tussling.” A few minutes later, he saw “Twin” enter the house.

Fulton went inside the residence as well. ⁶⁰⁶ The unidentified person remained outside the residence where he was giving orders. After appellant, Fulton, and “Twin” were inside, Simon heard gunshots. He then heard sounds as if someone was sweeping up some glass and then saw the trio emerge from the residence. Simon knew both Tremaine and Trendon Washington, and was aware that one of them was incarcerated at the time.

He identified a photograph of Trendon Washington as the person he was referring to as “Twin” in his testimony. After Simon testified that he spoke to Detective Lloyd on three occasions, the State sought to refresh his recollection with a statement, but Simon testified that he could not read or write. Because there was some confusion about whether Simon ever told police that he saw Fulton enter the residence, the jury was excused, and the tape of Simon’s third interview was played to refresh Simon’s recollection. After the jury returned, Simon testified that Fulton was standing outside of the house and actually never went inside.

Simon admitted he had made a mistake earlier during his testimony when he said Fulton had gone inside. Simon continued his testimony as follows: While appellant, “Twin” (Trendon Washington), and an unidentified third person were inside the residence, Simon heard tussling. After he heard these sounds, Fulton, “who remained outside, hollered, ‘handle your business.’ ” Simon then heard two to three gunshots. After the shooting, Simon saw all four individuals run from the residence.

Simon identified a photo of appellant as a person who was present at the crime scene and had entered the residence. He also identified both Tremaine and Trendon Washington, distinguishing between them and identifying Trendon Washington as the twin present at the scene. Simon was originally unable to identify the person who remained outside the residence, but, after refi"eshing his recollection, recalled that during the third interview with police, he identified a photograph of ⁶⁰⁷ Fulton, indicating that he was the one who stayed outside and “gave orders.” Asked why he did not go to the police earlier, Simon stated: “It ain’t good to snitch, it ain’t good to snitch. Snitchers get stitches, that’s how I always looked at it.” However, when he learned that the victim was Wood’s father, Simon decided to come forward.

He learned two days after he saw the individuals at Paige’s residence that Paige had died. On cross-examination, Simon testified that he had not testified in the trial involving Trendon Washington and that he was incarcerated when he first spoke to Detective Lloyd about this case. Detective Chris Glanville testified that he encountered appellant, and both Trendon and Tremaine Washington, on April 28, 2007. At that time, he recovered a loaded .45 caliber Springfield nineteen eleven model firearm from Trendon Washington.

All of the bullets recovered in this case were .45 auto caliber. The ballistics evidence was compared to the recovered firearm, and two of the cartridge casings recovered from the crime scene were fired from that pistol. Other bullet specimens could neither be identified nor eliminated as being fired from the recovered gun. However, three of the five bullets recovered in this case were fired by the same firearm, while the two remaining bullets lacked proper markings for comparison.

Detective Lloyd testified that Trendon Washington, Fulton, and appellant were arrested in connection with this case. Appellant was arrested in Decatur, Georgia, where he gave the name “James L. Jefferson.” When appellant was interviewed on April 10, 2008, the parties stipulated that appellant stated: “I already looked up the case. Why am I not just charged with conspiracy, what about the other three?” The charging documents at that time did not mention conspiracy. Also, Detective Lloyd testified that he had never told appellant about a conspiracy charge or that there were three other people involved in the crime. ⁶⁰⁸ Detective Lloyd testified that he was aware that DNA evidence had been collected at the crime scene, but the parties stipulated that all of that evidence came back as being consistent with the victim’s DNA.

Latent fingerprints recovered from the crime scene were also consistent with being from the victim. Additionally, a search warrant was obtained for appellant’s home and nothing was recovered from that search relating to this investigation. The State’s last witness was the medical examiner, Dr. Theodore King. According to Dr. King, Paige died of multiple gunshot wounds, and the manner of death was homicide.

He could not pinpoint the exact time of death. After the State rested, defense counsel called Fulton. Fulton testified that he knew appellant and that he knew him by the name of “Muggs.” Fulton used to live at 500 East 43rd Street in Baltimore City, “[u]p to prior to [his] arrest” in 2007. Paige, who Fulton knew as “Poppy,” lived next door at 502 East 43rd Street.

Fulton also knew Woods, Woods’s son, Ricky, and Simon, also known as “Lurch.” Fulton stated that he was originally charged with Paige’s murder. Fulton testified that, on March 18, 2007, Trendon Washington called and asked Fulton to drive him to the “vial store.” Trendon Washington sold drugs, including crack and marijuana, and usually stored his drugs in a vacant house located nearby at 508 East 43rd Street. Fulton, along with appellant, accompanied Washington to the store to buy vials so he could package his drugs. When they returned, Fulton parked in front of 508 East 43rd Street while Washington went inside.

Moments later, Washington emerged and angrily informed them that his drugs were missing and that the back door to that location had been knocked down. Recalling that Paige was outside when the three of them left to go to the “vial store,” Washington and appellant then went to Paige’s home, while Fulton remained with his car. Trendon Washington engaged Paige in a conversation, but Fulton could not hear what they were saying. After that ⁶⁰⁹ conversation, Washington and appellant returned to Fulton’s car, and Washington said, “I’m going to go do that.” Fulton understood this to mean that Washington was going to beat and then kill Paige.

Fulton testified that he saw Trendon Washington the next day, but he did not mention Paige or the drugs. Fulton then saw Trendon Washington again, on March 20, 2007, at around noon or 1:00 p.m., and Fulton asked him where Paige was because he had not seen him in two days. Washington replied, “I done what I said I was going to do.” Fulton understood this to mean that Washington had killed Paige. Around 5:00 or 6:00 p.m. that same day, Fulton learned that Paige was dead.

Fulton further testified that he had seen Trendon Washington carry a .45 caliber semi-automatic handgun on prior occasions, including in January and February of 2007. Fulton described the gun, and then identified State’s Exhibit 6A as Trendon Washington’s gun. On cross-examination by the State, Fulton confirmed that he was not present at the time of the murder, and, further, that Trendon Washington did not provide him with any details of what he had done. Nor did Washington tell Fulton if he was with anyone at the time of the murder.

We shall include additional facts in the discussion of the issues presented. DISCUSSION I. Appellant first contends that we should remand this case for a new sentencing hearing because the trial court failed to exercise any discretion when it denied his request to order a pre-sentence investigation (“PSI”). The State responds that, even if the court erred, the record demonstrates that any error was harmless beyond a reasonable doubt. Considering the record as a whole, we agree with the State. ⁶¹⁰ After the jury returned its verdict convicting appellant of second degree murder and conspiracy to commit murder, the following ensued: THE COURT: All right, counsel, are we ready for sentencing? [DEFENSE COUNSEL]: Your Honor, we would request a PSI.

THE COURT: Denied. I think what I need to know to sentence in this case, [defense counsel], is anything good you can tell me about him, but I’ve heard this case. I want to see the sentencing guidelines. I want to hear about his prior record.

I want to hear anything good you can tell me about him. Do you have the sentencing guidelines computations [prosecutor]? The State then informed the court that he had calculated the guidelines and shown them to defense counsel. Those guidelines called for a range of sentencing for second degree murder between twenty to thirty years, and, for conspiracy, between thirty years to life imprisonment.

Defense counsel could not agree with those guidelines because she did not prepare guidelines herself. The court replied: “Well if you disagree get back to me subsequently.” Both parties then agreed that appellant was previously convicted of attempted second degree murder in 1998, and had received a sentence of ten years, with all but five suspended. Appellant had also been convicted of a deadly weapon charge, although it was unclear whether that was for use of a deadly weapon or carrying.a deadly weapon. Appellant was also convicted of third degree sexual offense, as well as breaking and entering, but neither defense counsel nor the State knew what the sentence was on those convictions.

The court then asked defense counsel appellant’s age, and, after defense counsel replied that appellant was twenty-six years old, defense counsel asked if the court was going to sentence at that time. The court replied in the affirmative, stating that it was within the court’s discretion whether to order a PSI. Counsel then indicated that she was not prepared ⁶¹¹ for sentencing because she did not bring her folder containing appellant’s file. After counsel also indicated that she could not have someone bring her the file, the court replied: Well, with the crowded dockets we have and the resources we have, I think sentencing is appropriate now.

If you want to file anything with me for reconsideration, I’ll certainly be glad to consider it, but what can you tell me good about your client? Counsel then asked for and was granted a brief recess to retrieve her file folder. When defense counsel returned to the courtroom, she began by moving to strike the second degree murder verdict on the grounds that it was inconsistent with the jury’s acquittal on the handgun charges. Counsel stated, “absent an instrument, it would seem to me how could the second degree verdict survive.” The court denied the motion, indicating that counsel did not make this motion prior to excusing the jury.

Defense counsel then noted that she had a right to file a motion for new trial within ten days of the verdict, and, by immediately proceeding to sentencing, the court was denying appellant the opportunity to file such a motion. The court disagreed, observing that appellant could file all post-trial motions after sentencing. Defense counsel then objected to sentencing without a PSI, stating that appellant “should have an opportunity to prepare information for the Court, information in mitigation, including having individuals testify on his behalf, and the Court is denying him the right to do that.” After the court stated that appellant could testify on his own behalf, defense counsel then stated, “I just have not had the experience in my 28 years of asking for a PSI and not getting it in a case of this magnitude.” It was at this point that the trial court stated: I can tell you, I haven’t been here 28 years, but I have been on this job a couple of years and I have always sentenced as soon as the verdict comes in. I have never ordered a PSI, and I guess I shouldn’t say this but I will, the only PSI I had was one that was mandatory because it ⁶¹² was a life without parole.

And I must tell you it didn’t help me at all. I mean it was just blabber that he had a grandmother who loved him and, you know, things like that, that you can proffer to me. So while it would be fine to hear from the people, I’ll accept your proffer as to what they would have to say on behalf of Mr. Armstead. So what else?

Defense counsel then informed the court that appellant was twenty-six years old, had an eighth grade education, and received his GED in 1999. Appellant worked for two different companies between 2002 and 2004, and stopped working when his mother passed away in 2004. Appellant’s father was alive, but was suffering from a kidney ailment. Appellant was not married and had no children.

He did not suffer from any physical or mental disabilities. He was not taking any medications, but was addicted to drugs and alcohol. With respect to his prior convictions, defense counsel could find no reference to a prior breaking and entering, and the court replied, “Then I won’t consider it.” The prior sex offense case from 1998 began as a juvenile matter and was transferred to adult court. The prior attempted second degree murder dated from February 1999, where appellant was sentenced to ten years, with all but five suspended, followed by four years of probation.

The court then heard from appellant’s aunt, Tasheena Washington, who informed the court that appellant was “easy going, he is quiet, he is a playful individual.” Appellant had had a “hard life” and “he was scared.” With respect to the sex offense conviction, Ms. Washington informed the court that the incident involved her niece. According to Ms. Washington, after the niece’s mother gave her to her father, the niece thought that “if she would lie[,] that my sister would take her back and she didn’t.” Ms. Washington also stated that appellant told his grandmother he never touched the niece. Appellant then addressed the court, declaring that, when he was fifteen, he carried a gun and shot someone. He confessed ⁶¹³ to that crime and did his time, stating: “I admitted to my mistakes.” After he came home, appellant stated, “sometimes you just, like you get caught in stuff that you really don’t have nothing to do with, and I just, I guess sometimes you pay for the decision of the twelve people you pick on the jury.” Appellant then asked for leniency.

After appellant concluded, defense counsel then informed the court that she had nothing else to tell the court. The court then stated that it was not considering the breaking and entering, and that it was not attaching any significance to the sex offense conviction based on the fact that appellant was “on the cusp of being a juvenile himself[.]” The court then indicated that this was a “horrible” case and that he agreed with the jury’s verdict, “except I think it was a first degree murder case and I think they showed leniency.” Appellant was then sentenced to thirty years for second degree murder and to a consecutive sentence of life for conspiracy to commit murder. Defense counsel concluded the proceeding by informing appellant of his post-trial rights, including the right to file: a motion for new trial, an appeal to this Court, a request for review of sentence by a three-judge panel, and a request for a modification of sentence. 1 Appellant acknowledges on appeal that the decision of the circuit court of whether to order a PSI is a discretionary one. See Md. Rule 4-341 (“Before imposing a sentence, if required by law the court shall, and in other cases may, order a presentence investigation and report.”); Md.Code (1999, 2008 RepLVol.) § 6-112(b) of the Correctional Services Article (providing that a presentencing investigation report is allowed if the court is satisfied it would help, and the party requesting ⁶¹⁴ the report has the burden of establishing that the investigation should be ordered); Sample v. State, 33 Md.App. 398, 406 , 365 A.2d 773 (1976) (“Whether or not a court orders a presentence investigation in a particular case is within the discretion of the court”).

Moreover, this Court has indicated that the trial court is not required to consider information in a PSI prior to sentencing. See Church v. State, 5 Md.App. 642, 646 , 248 A.2d 907 (“There is no requirement under Maryland Rule 761(c) that the trial judge is required to make use of a presentence report.”). Appellant argues that, by stating it had “never ordered a PSI,” the trial court followed a “hard and fast rule” that demonstrated failure to exercise discretion. When a trial judge has discretion in making a decision, “he must use it and the record must show that he used it.” Nelson v. State, 315 Md. 62, 70 , 553 A.2d 667 (1989) (holding that court’s refusal to order a PSI was erroneous).

When a trial judge acknowledges that he has the right to exercise discretion, but chooses instead to follow “some consistent or uniform policy,” he has acted erroneously. Hart v. Miller, 65 Md.App. 620, 627 , 501 A.2d 872 (1985), cert, denied, 305 Md. 621 , 505 A.2d 1342 (1986); see also Maddox v. Stone, 174 Md.App. 489, 502 , 921 A.2d 912 (2007) (“[T]he record must reflect that the judge exercised discretion and did not simply apply some predetermined position.”). In Somers v. State, 156 Md.App. 279 , 846 A.2d 1065 , cert, denied, 382 Md. 347 , 855 A.2d 350 (2004), defense counsel requested a PSI, and that request was denied, with the only comment from the court being, “We will sentence today.” Id. at 318, 846 A.2d 1065 . This Court concluded that the circuit court did not abuse its discretion in so ruling “because Somers offered nothing to show a need for a presentence investigation.” Id. at 319 , 846 A.2d 1065 .

We further observed that there was nothing in the record to establish that the court failed to exercise discretion. For instance, “[t]he court did not say or do anything to show that it was acting in a rote fashion, out of a routine that did not depend on the particulars of the ⁶¹⁵ given case.” Id. Instead, the record established that the court exercised its discretion because “no showing was made to support it.” Id. By contrast, in this case the trial court clearly stated that it never ordered a PSI except in a case where it was mandatory to do so.

Thus, it appears the court was “acting in a rote fashion,” and failed to exercise any discretion in deciding whether to order a PSI on a case by case basis. For that reason, we shall assume, for the purposes of this opinion, that the trial court’s refusal to order the PSI was an abuse of discretion. However, under the circumstances of this case, we are persuaded that the error was harmless beyond a reasonable doubt. See Dorsey v. State, 276 Md. 638, 659 , 350 A.2d 665 (1976) (error will be harmless when reviewing court, upon independent review, is able to declare a belief beyond a reasonable doubt that there is no reasonable possibility that the error contributed to the verdict); see also Scott v. State, 289 Md. 647, 655 , 426 A.2d 923 (1981) (considering, but ultimately rejecting, State’s argument that trial court’s error in meeting ex parte with a representative of a medical office and hearing a recommendation as to sentencing was harmless error); Conyers v. State, 354 Md. 132, 161 , 729 A.2d 910 (in a capital murder case, stating “that any alleged error did not affect the outcome of the sentencing proceedings and was harmless beyond a reasonable doubt”), cert, denied, 528 U.S. 910 , 120 S.Ct. 258 , 145 L.Ed.2d 216 (1999); King v. State, 300 Md. 218, 232 , 477 A.2d 768 (1984) (failure of State to file notice of its intent to seek enhanced penalties at sentencing was harmless error under the circumstances); Brown v. State, 11 Md.App. 27, 34 , 272 A.2d 659 (although court erred by sentencing without hearing allocution, the error was harmless under the facts of this case because, immediately after sentence, counsel argued in mitigation of sentence, and the record showed that the trial court gave careful consideration to that argument), cert, denied, 261 Md. 722 (1971). ⁶¹⁶ Here, the record as a whole establishes that appellant was not prejudiced by the failure of the court to order a PSI or to delay sentencing beyond the time necessary for defense counsel to retrieve her files.

The court learned, through both the State and defense counsel, about appellant’s prior convictions. Defense counsel also informed the court about appellant’s education, employment history, and family life, including his addiction to drugs and problems with alcohol. Appellant’s aunt also addressed the court and offered further information concerning the circumstances of one of appellant’s prior convictions. Finally, appellant was given an opportunity to address the court and ask for leniency.

After hearing all of this evidence, the court indicated that either it would not consider certain of appellant’s prior convictions or it would give them little' significance in sentencing. The court then indicated that this was a “horrible” crime that could have resulted in a first degree murder conviction, and this appears to be the basis for its sentencing decision. Finally, as the State notes, defense counsel was informed that she could “file anything with me for reconsideration,” and that the court would consider such information. Appellant did file a number of post-trial motions, and, although we have not been provided with the substance of those motions, we note that there also is no suggestion by appellant on appeal that the court abused its discretion or erred in denying those post-trial motions, or that appellant brought information to the court’s attention that would have affected the sentence in his favor.

Accordingly, we agree that, under the circumstances of this case, the error was harmless beyond a reasonable doubt.

II

Appellant next asserts that the trial court’s instructions permitted him to be convicted of conspiracy to commit murder without a finding that the agreement was to commit murder in the first degree. Recognizing that this Court had dealt with a similar issue in Alston v. State, 177 Md.App. 1 , 934 A.2d 949 (2007), a case pending in the Court of Appeals on certiorari review at the time appellant filed his brief in this ⁶¹⁷ case, appellant maintains: that the instruction amounted to plain error; that there was an ambiguity in the verdict; that the life sentence was illegal; and, finally, that our decision in Alston was wrongly decided. The State responds that this Court “rejected this same contention in Alston [.] ” The State further observes that, after appellant filed his initial brief in this case, the Court of Appeals affirmed our decision in Alston. See Alston v. State, 414 Md. 92 , 994 A.2d 896 (2010).

The State suggests that we follow Alston because appellant did not object to the jury instruction, the instruction does not constitute plain error, and because “[t]he merits of Armstead’s claim are, moreover, indistinguishable from those of Alston , and should be rejected.” Alston was convicted of conspiracy to commit murder, but the jury returned not guilty verdicts on charges of first-degree murder, second-degree murder, and handgun charges. Alston, 177 Md.App. at 9 , 934 A.2d 949 . Alston raised four challenges to his convictions on appeal, one of which being that the trial court erred in sentencing him to life imprisonment when the jury could have found him guilty of conspiracy to commit second-degree murder. Id. at 9-10 , 934 A.2d 949 .

The trial court, in Alston, instructed the jury first as to the crime of conspiracy consistent with the pattern instruction for conspiracy. Id. at 34, 934 A.2d 949 . See Maryland State Bar Ass’n, Maryland Criminal Pattern Jury Instructions 4:08, at 167 (1995) (“MPJI-Cr”). Specifically, the court instructed: The Defendant is charged with the crime of conspiracy to commit murder.

Conspiracy is an agreement between two or more person [sicj to commit a crime. In order to convict the Defendant of conspiracy, the State must prove ... that the Defendant entered into an agreement with at least one other person to commit the crime of murder and that the Defendant entered into the agreement with the intent that that crime be committed. Alston, 177 Md.App. at 34 , 934 A.2d 949 . The trial court then gave the pattern instruction on first degree premeditated murder and second degree specific intent ⁶¹⁸ murder.

Id. at 34-35 , 934 A.2d 949 . See MPJI-Cr 4:17 at 217-18. Alston offered no objection to the instructions. Alston, 177 Md.App. at 40 , 934 A.2d 949 .

Thereafter, the jury-convicted Alston of conspiracy to commit murder, but did not convict on either murder charge. In sentencing Alston, the trial court “concluded that ‘no reasonable jury could have found conspiracy to commit second degree murder on these facts;’ ” thus, it imposed a life sentence. Id. at 35 , 934 A.2d 949 . Alston moved for a new trial on the ground that “the conspiracy to murder instruction was not specific as to whether the conspiracy was to commit first or second degree murder.” Id.

The court denied Alston’s motion “reasoning that conspiracy to murder, by definition, must be conspiracy to commit first degree murderf.]” Id. On appeal, this Court concluded: To be sure, it is conceivable the jury may have been improperly led to believe from the instruction that it could convict Alston of conspiracy to commit second degree murder without finding a specific intent to kill. A proper instruction would have informed the jury that it could only convict Alston for conspiracy to commit first degree murder or that the specific intent to Mil was required. But Alston failed to timely object to the instruction, as Md. Rule 4-325(e) requires: No party may assign as error the giving or the failure to give an instruction unless the party on the record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection.

Alston’s failure to challenge the jury instruction in accord with Md. Rule 4-325(e) now bars his asserted assignment of error. Id. at 40, 934 A.2d 949 . The Court of Appeals affirmed our decision, agreeing that Alston failed to preserve his challenges to the court’s instructions. Alston, 414 Md. at 111 , 994 A.2d 896 .

Alternatively, the Court observed that, “... even if we exercise our discre ⁶¹⁹ tion under Maryland Rules 4-325(e) and 8-131 (a) and excuse the defendant’s failure to object to the instructions, the result would not be different.” Id. at 112 , 994 A.2d 896 . The Court rejected Alston’s contention that, if properly instructed, the jury could have found him guilty of conspiracy to commit second-degree murder, because, “[ujnder Maryland law, there can be no such thing as a conspiracy to commit second degree murder of the intent-to-inflict grievous bodily harm variety.” Id. at 112-13 , 994 A.2d 896 . The Court explained that, under Mitchell v. State, 363 Md. 130, 140 , 767 A.2d 844 (2001), “there [is] no such crime in Maryland as conspiracy to commit second degree murder based upon an intent to kill but without deliberation and premeditation ...” because “ ‘the kind of awareness and reflection necessary to achieve the unity of purpose and design for a conspiracy is essentially the same as that required for deliberation and premeditation.’ ” Id. at 113, 994 A.2d 896 (quoting Mitchell, 363 Md. at 149, 767 A.2d 844 ). In addressing the question left open by Mitchell, the Court recounted its analysis of the intent to inflict grievous bodily harm variety of second-degree murder as iterated in Thornton v. State, 397 Md. 704, 714 , 919 A.2d 678 (2007). “Murder of the intent-to-inflict-grievous-bodily-harm type is, by definition, a specific intent crime, even though there is no conscious or purposeful design to kill the victim.

Fisher [v. State ], 367 Md. [218,] 274 [ 786 A.2d 706 (2001)]. In Glenn [v. State], 68 Md.App. [379,] 390 [ 511 A.2d 1110 (1986)], the intermediate appellate court acknowledged that ‘[t]he critical distinction that needs to be made ... is between the results specifically intended, not between the presence or absence of a specific intent. Although there is the purpose or design that the victim should suffer serious physical harm, there is no necessary purpose or design that the victim should die.’ (citations omitted). See also, [Judge Charles E. Moylan, Jr., Criminal Homicide Law, 95 (2002) ].

(The difference between specific intent-to-kill murder and specific intent to commit grievous bodily harm is in the result specifically intended.).” ⁶²⁰ Alston, 414 Md. at 116 , 994 A.2d 896 (quoting Thornton, 397 Md. at 731-32 , 919 A.2d 678 ; emphasis in Thornton) (footnote omitted). According to the Court: It is clear from Thornton that the intent-to-inflict-grievous-bodily-injury variety of second degree murder does not involve an intent to kill. An intent to murder, however, means an intent to kill with malice. State v. Earp, 319 Md. 156, 163-164 , 571 A.2d 1227, 1231 (1990); State v. Jenkins, 307 Md. 501, 514-515 , 515 A.2d 465, 471-472 (1986).

And a conspiracy to murder means a malicious intent to kill with deliberation and premeditation, i.e., first degree murder, as the conspiracy necessarily supplies the elements of deliberation and premeditation. Mitchell v. State, supra, 363 Md. 130 , 767 A.2d 844 . Consequently, a charge of conspiracy to murder logically excludes second degree murder based upon an intent to inflict grievous bodily harm. The intent elements of each offense are entirely separate and distinct.

Id. at 116-17, 994 A.2d 896 . In this case, the trial court’s instructions were nearly identical to those given during Alston’s trial. The trial court first gave the pattern instruction on first degree premeditated murder and second degree specific intent murder. See MPJI-Cr 4:17, at 217-18.

The court then gave the pattern instruction on conspiracy, stating generally that appellant was charged with conspiracy to commit the murder of Mr. Paige. See MPJI-Cr 4:08, at 167. The trial court further stated, consistent with the pattern instruction, that the State was required to prove “that the defendant entered into an agreement with at least one other person to commit the crime of murder, and the defendant entered into that agreement with the intent that murder be committed.” Like Alston, appellant failed to lodge an objection to the court’s instruction and expressly stated, “No exceptions.” Although appellant urges us to exercise our discretion under Md. Rule 4-325(e) to take cognizance of this alleged “plain error,” we decline appellant’s invitation in light of the Court of Appeal’s recent holding in Alston, 414 Md. at 92 , 994 A.2d 896 . ⁶²¹ Accordingly, we need not address appellant’s remaining arguments on this issue as it is clear that, in Maryland, there can be no conspiracy to commit second-degree murder and, therefore, it was not error for the trial court to omit an instruction to the jury explaining that there can be no conspiracy to commit second-degree murder. 2 III. Next, appellant contends that “a recurring issue at trial was whether the defense would be permitted to adduce evidence to establish that the State, in two separate trials of the same event, pressed two very different and to some extent contradictory versions of the events.” In that regard, appellant maintains that the court erred in excluding evidence of Fulton’s plea agreement with the State.

The State responds that the trial court properly exercised its discretion in excluding this evidence. As we will explain in more detail, while evidence of Fulton’s plea agreement was arguably admissible to challenge Simon’s credibility, we are persuaded that the circuit court did not abuse its discretion in excluding this evidence under Rule 5-403. Prior to trial, appellant moved to preclude Simon’s testimony on the grounds that he was being denied due process based on the alternative theories of the case put forward by the State, and because there was an alleged discovery violation with respect to Fulton. 3 According to appellant: “[I]n the instant case, the State called as its principal witness Leroy Simon, who averred that Jamal Fulton was a major partici ⁶²² pant, and quite possibly the ringleader, in the murder of Ricardo Paige,” but [i]n the trial of Trendon Washington, by contrast, the State entered into a plea bargain with Fulton which required that he tell the truth, and elicited from him testimony that he was not present for the murder, but instead was an important figure primarily because he allegedly heard Trendon Washington threaten to harm Paige, and subsequently admit that [Washington] had done so. The trial court was informed that Fulton received a deal to secure his testimony and was not charged with respect to the murder.

The State acknowledged that it did call Fulton but it did not call Simon as a witness in the prior prosecution of Trendon Washington. In this case, the State planned on calling Simon, but not Fulton. Appellant’s counsel informed the court that, although Fulton was listed as a witness in this case, the State had just informed appellant the day before that Fulton would no longer be called as a State’s witness. The court stated that appellant could call Fulton.

Appellant responded that she had not obtained a writ for Fulton, who was presently incarcerated at the Eastern Correctional Institute. The court ruled that, based on this proffer, it would issue a writ for Fulton. The court also ruled that, if Fulton became a hostile witness, defense counsel would be permitted to ask leading questions on direct examination. The court then asked appellant’s counsel, in order to understand appellant’s motions, to clarify the distinctions between Fulton’s and Simon’s expected testimony.

Counsel proffered that Simon would testify that Fulton was present the night of the murder and was giving encouragement during the course of the crime. Fulton, however, would testify that this encouragement actually happened several days before the murder, and that the only reason he pleaded guilty to conspiracy was because the State offered him a deal in exchange for his testimony. The court concluded that defense counsel had satisfactorily explained why Fulton was not summoned, and ⁶²³ the court would assist counsel in securing his presence for trial. This issue arose at trial during Detective Lloyd’s cross-examination.

Detective Lloyd admitted he was present at a meeting on December 5, 2008, with Fulton, Fulton’s attorney, and the prosecutor. When Detective Lloyd was asked if a deal was struck with Fulton at that time, the State’s objection was sustained. At the ensuing bench conference, the court noted that Fulton would not be a State’s witness and questioned the relevance of a deal with Fulton. Defense counsel replied the fact of a deal was relevant because Fulton gave different testimony at Trendon Washington’s trial concerning the incident than was given by Simon in appellant’s trial.

The court responded that appellant could call Fulton to impeach Simon, and counsel indicated that was her intention. As to why the deal between the State and Fulton was relevant in this case, defense counsel asserted that, in Fulton’s version at Washington’s trial, Washington told Fulton that he “was going to do something to Paige. He was going to mess him up or hurt him or some such language. Allegedly my client was sitting in the car with Jamal Fulton when this conversation took place.

My client was completely quiet.” Defense counsel maintained that the State “got in bed with Jamal Fulton,” and that, by cutting a deal, they believed Fulton’s version of events. The court clarified counsel’s position as being that “the State is bound by the testimony as they put on with Fulton.” Defense counsel agreed, contending, “this is a whole lot different from a situation where the defense develops a witness and the person is contradictory. These are two witnesses developed by the State and they chose not to call Leroy Simon in the other case and they are choosing in this case not to call Jamal Fulton because the two statements are completely contradictory.” Again, the court responded that the defense could call Fulton and let Fulton say that I got this deal and I went in and I said X, and to the extent that that differs from Simon you have it, and to the extent that he has been in your view, if this is ⁶²⁴ your view, bribed or induced by the State and not brought forward here, you have that, and you can argue that. The State responded that “how to try one case in one trial, to try a wholly separate defendant is trial strategy.

That doesn’t go before a jury.” Further, the State proffered that Fulton’s deal in connection with the Washington case was irrelevant because Fulton “didn’t take a deal to testify against [appellant].” The court then suggested that defense counsel’s position was that there was prosecutorial misconduct involved. After further argument, the court reserved ruling, asking that the parties produce case law on the matter. The court stated that the State’s position in the first case “would be in effect an admission and therefore — against you, a party, and admissible in this case.” But, the “question would be how material is the difference.” After the jury was excused, defense counsel proffered Fulton’s testimony from the Washington trial, which culminated in Fulton not putting himself at the scene of the murder. The State explained that Fulton was called in the first trial to provide a motive for the killing, and to testify to Washington’s admissions that he was going to do something to Paige, and that Washington did admit to the killing afterward.

When asked if Fulton gave the State anything else, the State replied: “Nothing with regard to this gentleman,” presumably referring to appellant. Defense counsel then stated that Fulton pleaded guilty to conspiracy to commit murder “and he got a sentence of five years and he was to testify truthfully, that’s part of the deal, at the trial of Trendon Washington.” 4 After the State re ⁶²⁵ sponded that there was no need to introduce evidence of Fulton’s deal with the State, the court tended to agree, stating to defense counsel: If [the prosecutorj’s calling Fulton, clearly you have every right to show he’s singing for his supper, he’s been bought by the State. If you are calling him, what’s the relevance that he made a deal with the State earlier? Because it seems we can cut the other way.

Then he lied in the earlier case which, as to Trendon [Washington] is not really your problem. Defense counsel replied she had not seen the deal, and the State relied on what Fulton said as being truthful. The State indicated that Fulton testified as he did, and defense counsel could not “use the State to bolster and make his credibility even greater because the State stood behind it.” The trial court again indicated that “[fit’s called an admission.” The State replied that “I did not go before the jury and say Jamal Fulton is telling the truth.” The court disagreed, suggesting that it was implicit in the prosecution of Washington that the State wanted the jury to believe Fulton. At this point, the State sought to narrow the issue to how this affected the trial of appellant.

The State said, “[y]ou can have Jamal Fulton not at the scene and still have [appellant] there. They could still believe Leroy Simon that he saw [appellant] and maybe not ...” The court asked the prosecutor to “[s]low down a minute because you have a point.” The court then ruled the defense could call Fulton, but the issue of whether the deal with Fulton was admissible during the defense case required further consideration. The next day, defense counsel presented to the court the case of Sifrit v. State, 383 Md. 77 , 857 A.2d 65 (2004), cert, denied, 543 U.S. 1056 , 125 S.Ct. 929 , 160 L.Ed.2d 780 (2005). Defense counsel informed the court that the holding of that ⁶²⁶ case was, essentially, that “[a]s long as you have a continuing underlying premise then there is no due process violation ...” The court was also directed to a federal case, Smith v. Groose, 205 F.3d 1045, 1052 (8th Cir.), cert, denied, 531 U.S. 985 , 121 S.Ct. 441 , 148 L.Ed.2d 446 (2000), wherein the court ruled that “the use of inherently factually contradictory theories violates the principles of due process.” The court again reserved ruling, and, after the State rested its case, spent the remainder of the day considering jury instructions in this case.

The next day, defense counsel moved for a mistrial, contending it wanted to call Fulton and wanted to elicit that there was a deal that Fulton would testify in any trial related to the murder of Paige. Defense counsel stated on the record that the written agreement had been provided to the trial court. Defense counsel, again, maintained that the State was asserting alternative theories concerning the murder and that this amounted to a due process violation. Defense counsel also obtained a copy of the recording of Fulton’s plea hearing before another member of the circuit court.

She proffered that the statement of facts from that hearing was consistent with Simon’s version of events, not Fulton’s. In addition, the judge that took Fulton’s plea was informed that Fulton was present at the scene at the time of the murder. At the conclusion of the prosecutor’s proffer, Fulton’s counsel offered no additions or subtractions, but stated that Fulton “would agree that the statement just read would be the testimony of the witnesses that the State would call, but this would not be Jamal Fulton’s testimony.” Counsel therefore concluded the State knew, prior to Fulton’s testimony at Washington’s January 2009 trial, that there was this different version of the facts. 5 ⁶²⁷ In response, the court observed that the State wanted to use Fulton in Washington’s trial simply to