Bellamy v. State

HARRELL, J. This case springs from Joseph Nathan Bellamy’s convictions in the Circuit Court for Montgomery County for first degree murder and use of a handgun in the commission of a crime of violence. On 25 July 2003, the body of Jermaine “Jay” Carter was found in a wooded area near Brown Station Elementary School in Gaithersburg, Maryland. It bore two gunshot wounds, one in the back of the head and one in the right shoulder. Although the murder weapon was never located, ballistics analysis indicated that the victim’s wounds were caused by two .38 caliber bullets fired from the same gun.

A medical examiner testified at Bellamy’s trial that either shot would have been fatal. The crime scene yielded numerous beer cans, as well as a makeshift crack pipe and black head ³¹² wrap near Carter’s body. The victim’s pants pockets were turned inside-out. Police investigators retrieved four full or partial shoe impressions from the victim’s body.

One particular impression, on the back of the victim’s shirt, came from a “lug type tread.” Two impressions on the front of his shirt, as well as another on his right cheek, were made by an athletic shoe. These impressions were “consistent” with the athletic shoes being worn by Bellamy at the time of his arrest. 1 The State presented at Bellamy’s trial the following timeline of events regarding the murder. Around 6:00 P.M. on 24 July 2003, the victim and his cousin, Jermaine Jackson, took a bus to visit the victim’s ex-girlfriend, Aisha Deen. Deen was married to Bellamy, although they were not living together then.

There was some evidence that Deen and Carter had resumed their relationship. While at Deen’s house, the two men each consumed approximately twelve beers and smoked two marijuana joints. The two men took a bus to the Lakeforest shopping center, where they later called the victim’s mother requesting that she pick them up and drive them home. They arrived back at the victim’s home between 11:30 P.M. on 24 July and 12:45 A.M. on 25 July.

A group of people, playing loud music, were hanging out in the parking lot of Carter’s apartment complex. One of the group members, Amber Walker, testified that Carter walked past Bellamy and said “hello.” Bellamy ignored Carter, but later told Walker, “We’re going to get him.” After making that statement to Walker, Bellamy proceeded to the home of Calvin “Southside” Welch, 2 and told Welch that the victim was outside. ³¹³ Shannon Contee, another reveler, testified that Andre Saunders, Welch, and Bellamy went into Welch’s apartment at one point during the evening. The three men left the apartment, and according to Carter’s mother, Bellamy came to Carter’s home and asked for Carter. Carter left a few minutes later with Bellamy.

Bellamy, Carter, Welch, Saunders, and Jerrell Jackson then went to the park behind the elementary school. A few minutes after the men entered the park, Jackson rejoined the group gathered in the parking lot. Five minutes later, Contee heard two gunshots. She testified that she then saw Bellamy, Welch, and Saunders running to Welch’s apartment.

Amber Walker and Shenise Johnson testified that they heard the gunshots as well and that the gunshots were about two to three seconds apart. The evening after the murder, 25 July 2003, Detective James Drury and Detective Gary Turner went to Bellamy’s apartment. No one answered the door. The detectives walked around the complex and eventually found Bellamy with Jerrell Jackson.

Bellamy attempted to mislead the detectives as to his name, but eventually identified himself correctly. 3 Later in the evening of 25 July, as the State’s case-in-chief unfolded, Bellamy encountered Shenise Johnson and Shawquana Thompson in the parking lot of the apartment complex. The women were throwing water balloons as a prank. One of the balloons struck Bellamy, who claimed that his cell phone was broken as a result. Bellamy retaliated by throwing bleach on Thompson’s jeans and shoes.

Thompson responded by saying “I know what you did last night” or “I know you killed Jay.” This apparently provoked Bellamy even more, so he threw bleach on Thompson’s face, also striking with the chemical her nearby seven-month old daughter. Around 12:30 A.M. on 26 July 2003, Bellamy arrived at the home of a girlfriend, Topeka Walker, in Gaithersburg. Bella ³¹⁴ my appeared upset. He spent the night at her home.

Around 11:00 A.M., Bellamy received a phone call from Jerrell Jackson. While they were talking, a news report appeared on the television about a body being found behind Brown Station Elementary School. Bellamy told Jackson to come to Topeka Walker’s house to bring him a “bag” and his “hammer.” 4 When Jackson arrived at Walker’s home, he gave Bellamy a book bag. Bellamy gave Jackson some cocaine, with instructions to sell it to support Bellamy’s sister and her child.

Bellamy and Topeka Walker got a ride with Jackson 5 to the Rockville Metro station. They took a bus to Silver Spring, where, at Bellamy’s request, Walker bought him a bus ticket to Rochester, New York. 6 On 30 July 2003, arrest warrants were issued in Maryland for Bellamy, Jackson, Saunders, and Welch. Bellamy was arrested in Rochester two weeks later at the home of his half-sister. The State also presented the testimony of Daniel Rothwell, a jailhouse informant. 7 Based on an agreement with prosecutors, Rothwell agreed to testify at Bellamy’s trial in exchange for the State placing various charges against him on the stet docket.

Rothwell claimed that Bellamy told him, while they were cellmates, that: (1) Carter and the mother of Bellamy’s children were involved in a sexual relationship; (2) Bellamy did not regret killing Carter; (3) Bellamy always carried a “hammer” or gun; and (4) witnesses and the prosecutor in Bellamy’s case could get hurt or killed. Rothwell also claimed that, on behalf of Bellamy, he communicated threatening messages to Saunders while incarcerated, urging him not to cooperate with prosecutors regarding Carter’s murder. ³¹⁵ The State contended that Bellamy was guilty of premeditated first degree murder. For example, in closing argument, the prosecutor argued that Bellamy was the shooter of both shots and was the person initially to pull out the gun, using the latter fact as evidence of premeditation. [Bellamy has] pulled the gun out, he has pointed it, he’s pointed it at the vital part of the body, and he made that final choice to pull the trigger, to kill, to murder, to execute. ... One second goes by two seconds go by, three seconds go by. [Bellamy’s] still making choices. ____ And he pulls the trigger a second time.

Willful, deliberate, premeditated? Absolutely. Bellamy’s defense argued at his trial that it was Welch, not Bellamy, who murdered Carter. Bellamy called Welch and Saunders as witnesses.

Both Welch and Saunders invoked the Fifth Amendment privilege against self-incrimination. Because Saunders’s testimony was therefore unavailable, Bellamy sought to have statements attributed to Saunders from Saunders’s earlier guilty plea hearing admitted as evidence. Prior to Bellamy’s trial, the State reached a plea agreement with Saunders. The terms of the agreement were that Saunders would plead guilty to being an accessory after the fact to the murder.

The plea was contingent on Saunders “testifying fully and truthfully,” if required, at Bellamy’s trial. 8 At Saunders’s plea hearing on 28 May 2004 in the Circuit Court for Montgomery County, the court expressed some concern over the terms of the plea agreement requiring Saunders to “testify truthfully.” Court: All right. When you say testify truthfully, I assume you mean testify consistent with the statements he’s previously made. State’s Attorney # 1: Well, our position is that if we determine at any time that he’s not being truthful, the deal is off. And it is our belief, based on our investigation and review of everything, is that he’s been truthful. ³¹⁶ Court: Okay.

It’s always just a little waffly, I mean, truthful, what does that mean? State’s Attorney #1: No, it’s no, we’re not— Court: As long as you all know what it means yourselves, that’s fine. State’s Attorney # 1: In other words we don’t want him to tell us, you know, something he thinks he wants us to hear. We want him to be truthful and we believe he has been.

State’s Attorney # 2: He has been debriefed on— State’s Attorney # 1: Yes. State’s Attorney # 2: the ramifications. I wouldn’t want it thought that this question of truth or non-truth is a decision unilaterally within the possession of the State’s attorney. It says what it says, whether or not he testifies truthfully.

Ultimately it may be a question for someone else. State’s Attorney # 1: But our understanding is the truth has been reduced to writing and the statement he provided to us. State’s Attorney # 2: That is correct. Court: That’s what I was trying to clarify.

Do we have somewhere what we believe the truth to be, so we can decide if it’s consistent or inconsistent? State’s Attorney # 1: Well, it’s based on you know kind of looking at it in its entirety and we believe what he told us so— Court: Okay. All right. The plea hearing continued.

The State proffered facts, based on Saunders’s statements to authorities, which it contended would support a finding of his guilt, beyond a reasonable doubt, of accessory after the fact. The portions of that proffer that Bellamy sought to have admitted as evidence at his trial are reproduced below. They started walking off toward the school. Joe [Bellamy] and Jermaine [Carter] were walking together, about ten feet ahead of Saunders and Welch.

When they were near the bleachers by the baseball field, Welch told Saun ³¹⁷ ders in a low voice, “We’re going to get him,” and then he [motioned] with his head toward Jermaine. At first Saunders did not make much of the comment, but when they passed the playground where they usually get high, he started about it more. When they reached the woods, Joe yoked Jermaine from behind. In other words, he would’ve demonstrated that he grabbed in an arm lock from behind, his arm around his neck.

Welch ran over to Joe and Jermaine and Welch began kicking Jermaine as Joe Bellamy held Jermaine. He then started kicking Jermaine and then Joe. When I say “he” Welch started kicking Jermaine and then Joe got Jermaine down onto the ground. Welch was cursing him and calling Jermaine a “bitch ass nigger,” that’s in quotes, and words like that.

Then Welch pulled a dark-colored revolver with brown grips from his right front pants pocket and pointed the gun at Jermaine’s mid-section and fired. Saunders heard the gunshot and saw the muzzle flash. Saunders turned and ran toward the apartments at that time, back down the path where they had come. About seven seconds after that, Saunders heard a second gunshot and about 20 seconds after that, as he still ran.

Welch had run up to his side, had caught up with him. They continued to run together and Saunders looked over and saw the gun’s grip hanging out of Welch’s pants pocket. Saunders and Welch ran back to Welch’s apartment and went into his bedroom. Welch’s wife, Kim, was in the bedroom, Jerel 9 was in the bedroom playing a video game.

The State’s proffer was extracted almost verbatim from Saunders’s statement given to police on 24 May 2004, after Saunders had agreed to accept the State’s offer of a plea bargain. The State concluded its factual proffer at Saunders’s plea hearing with: ³¹⁸ I wanted to advise the Court further that there have been some developments recently regarding Mr. Bellamy’s act at the scene. And that is that there is a witness from the jail [Rothwell] who Mr. Bellamy confided in. Mr. Bellamy indicated to him that Welch had or another individual—is how he described this person—had shot Jermaine Carter.

But that he also shot Jermaine Carter. In other words, he’d indicated that he was the person responsible for shooting Jermaine Carter in the back of the head. Your Honor, that’s the State’s proffer. The trial court accepted the proffer, finding a sufficient factual basis to accept the guilty plea.

Saunders’s sentencing, as noted earlier, was deferred until after Bellamy’s trial. 10 Because the State’s proffer at Saunders’s plea hearing identified Welch, not Bellamy, as the shooter, Bellamy called Welch and Saunders as defense witnesses in his trial. Both Welch and Saunders, as previously noted, because their sentencings were pending, invoked their Fifth Amendment privilege against self-incrimination. Thus, Bellamy sought to have the portions of the proffer at Saunders’s plea hearing admitted as evidence. The State objected that the statements were inadmissible hearsay.

The trial judge agreed with the State. 11 Bellamy was convicted by the jury of first degree murder and use of a handgun in the commission of a crime of violence. The trial court sentenced Bellamy to life in prison. 12 The Court of Special Appeals affirmed the convictions in an unreported opinion. We granted Bellamy’s Petition for Certiorari to consider whether the exclusion from evidence at his trial the ³¹⁹ part of the State’s proffer from Saunders’s plea hearing was reversible error. Bellamy v. State, 400 Md. 646 , 929 A.2d 889 (2007).

Bellamy presents three arguments. First, he contends that the statement should have been admitted as an adoptive admission of a party opponent (the State) under Maryland Rule 5-803(a)(2). Second, Bellamy asserts that Saunders’s statement constitutes a declaration against penal interest and, therefore, should have been admitted under Maryland Rule 5-804(b)(3). Finally, if his first two contentions gain no traction with us, Bellamy argues that the statement should have been admitted under the residual hearsay exception enumerated at Maryland Rule 5-803(b)(24). 13 Because we hold that it was error to exclude the statement as it qualified as an admission of a party opponent, we shall not address Bellamy’s latter two contentions.

As law students learn early, hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Maryland Rule 5-801(c). Subject to a variety of exceptions, generally “hearsay is not admissible.” Maryland Rule 5-802. One of the most important exceptions is the “statement by a Party-Opponent.” Maryland Rule 5-803 provides, in pertinent part: The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (a) Statement by Party-Opponent. A statement that is offered against a party and is: (1) The party’s own statement, in either an individual or representative capacity; (2) A statement of which the party has manifested an adoption or belief in its truth; ³²⁰ (3) A statement by a person authorized by the party to make a statement concerning the subject; (4) A statement by the party’s agent or employee made during the agency or employment relationship concerning a matter within the scope of the agency or employment; or (5) A statement by a coconspirator of the party during the course and in furtherance of the conspiracy.

Bellamy’s theory is that the State manifested its “adoption or belief in ... [the] truth” of Saunders’s statement when the Assistant State’s Attorney stated at the plea hearing, “And it is our belief, based on our investigation and review of everything, is that he’s been truthful,” “We want him to be truthful and we believe he has been,” and, “But our understanding is the truth has been reduced to writing and the statement he provided to us.” 14 Therefore, Bellamy argues, under Maryland Rule 8-503(a)(2), that part of the proffer of Saunders’s statements should have been admitted. The State contends that it “should not be considered a ‘party-opponent’ in a criminal prosecution for evidentiary purposes.” Much of the law surrounding the applicability of the equivalent of this hearsay exception against the government developed as a result of a debate of sorts among the federal circuits. 15 At common law, “the inconsistent out-of-court ³²¹ statements of a government agent made in the course of the exercise of his authority and within the scope of that authority ... are not ... admissible ... as evidence of [a] fact.” United States v. Yildiz, 355 F.3d 80, 81 (2nd Cir.2004) (citing United States v. Santos, 372 F.2d 177, 180 (2nd Cir.1967)); see also Anne Bowen Poulin, Party Admissions in Criminal Cases: Should the Government Have to Eat Its Words?, 87 Minn. L.Rev. 401, 412 (2002) (stating that, prior to the adoption of the Federal Rules of Evidence, “party admissions were almost never admitted against the government in criminal cases”). The subsequent adoption of the Federal Rules of Evidence (the Federal Rules), however, caused conflict in the federal courts regarding the continuing vitality of Santos .

Although there was widespread agreement among the circuits about the common law rule prior to the adoption of the Federal Rules, they profoundly disagreed upon the exact effect on that rule of the Federal Rules. Compare United States v. Kampiles, 609 F.2d 1233, 1246 (7th Cir.1979) (“Nothing in the Federal Rules of Evidence suggests an intention to alter the traditional rule and defendant has cited no truly contrary case indicating such a trend.”) with United States v. Morgan, 581 F.2d 933, 938 , (D.C.Cir.1978) (“Moreover, there is nothing in the history of the Rules generally or in Rule 801(d)(2)(B) particularly to suggest that it does not apply to the prosecution in criminal ³²² cases.”). Commentators also struggled with the effect of the Federal Rules. See Michael H. Graham, Handbook of Federal Evidence § 801:28 n. 11 (6th ed. 2006) (“However given the clear language of Rule 801(d)(2)(D), one could certainly question whether [Santos and its progeny] continue to be good law”).

Even the court which authored Santos since limited its application. The Second Circuit, in United States v. Salerno, adopted a three-part test 16 to be used to determine if prior opening statements by prosecutors were to be admissible against the government. First, “the district court must be satisfied that the prior argument involves an assertion of fact [clearly] inconsistent with similar assertions in a subsequent trial.” Second, the court must determine “that the statements of counsel were such as to be the equivalent of testimonial statements” made by [the party]. Last, the district court must determine by a preponderance of the evidence that the inference that the proponent of the statements wishes to draw “is a fair one and that an innocent explanation for the inconsistency does not exist.” United States v. Salerno, 937 F.2d 797, 811 (2nd Cir.1991), rev’d on other grounds, 505 U.S. 317 , 112 S.Ct. 2503 , 120 L.Ed.2d 255 (1992) (quoting United States v. McKeon, 738 F.2d 26, 33 (2d Cir.1984)). 17 ³²³ Since the adoption of the Federal Rules, the federal circuits have drifted apart in their interpretation of Rule 801.

On one side of the divide stands the Seventh Circuit as the leader, which has held that “in a criminal prosecution government employees are not considered servants of a party-opponent for the purposes of the admissions rule.” Kampiles, 609 F.2d at 1246 ; United States v. Powers, 467 F.2d 1089, 1095 (7th Cir.1972); United States v. Prevatte, 16 F.3d 767 , 779 n. 9 (7th Cir.1994); United States v. Arroyo, 406 F.3d 881, 888 (7th Cir.2005); see also United States v. Zizzo, 120 F.3d 1338 , 1351 n. 4 (7th Cir.1997) (“Based on the common law principle that no individual should be able to bind the sovereign, we generally decline to apply Rule 801(d)(2) to statements made by government employees in criminal cases.”). On the other side of this jurisprudential gully the flag-bearer is the Ninth Circuit, which permits admission of statements by government agents who are not involved with the litigation to be admitted in a criminal proceeding. United States v. Van Griffin, 874 F.2d 634, 638 (9th Cir.1989) (holding that a manual on field sobriety testing issued by the government should be admissible as an admission of a party opponent in a drunk driving case); United States v. Bakshinian, 65 F.Supp.2d 1104, 1110 (C.D.Cal.1999) (holding that “the statement of the government prosecutor falls within the party-opponent rule, the Court will not apply the McKeon requirements, and the admissibility of the statement at trial will be considered under typical Rule 402 and Rule 403 standards”). Most of the remaining federal circuits are distributed somewhere between those two poles.

See United States v. Branham, 97 F.3d 835, 851 (6th Cir.1996) (noting that the “government concedes that Rule 801(d)(2)(D) contemplates that the federal government is a party-opponent of the defendant in a criminal case” and holding that the statements of a paid informant are admissible against the government); United States v. Reed, 167 F.3d 984, 989 (6th Cir.1999) (re-affirming ³²⁴ Branham and noting that statements of a paid informant could be admissible against the government as an admission of a party opponent); United States v. Kattar, 840 F.2d 118, 130 (1st Cir.1988) (stating “[w]hether or not the entire federal government in all its capacities should be deemed a party-opponent in criminal cases, the Justice Department certainly should be considered such” and admitting as evidence statements argued in briefs in separate litigation because the Justice Department had manifested its adoption and belief in the truth of such statements); United States v. Blood, 806 F.2d 1218, 1221 (4th Cir.1986) (stating that a statement by a government attorney during voir dire would be binding against the government if it had constituted a “clear and unambiguous” admission); United States v. Barile, 286 F.3d 749, 758 (4th Cir.2002) (holding that in prosecution for making false statements to the FDA, the statements of an employee of the FDA could be admitted against the government if the proper foundation is laid); United States v. Durrani, 659 F.Supp. 1183, 1185 (D.Conn.1987), aff'd, 835 F.2d 410 (2d Cir.1987) (holding that government agent’s out of court statements could not be admitted against the government); United States v. GAF Corp., 928 F.2d 1253, 1262 (2nd Cir.1991) (holding that a bill of particulars filed by the government is admissible as an admission of a party opponent); United States v. DeLoach, 34 F.3d 1001, 1005 (11th Cir.1994) (adopting the test from Salerno discussed supra); United States v. Warren, 42 F.3d 647, 655 (D.C.Cir.1994) (holding that government had manifested its belief in sworn statements by a police officer contained in an affidavit, therefore the statements were admissible under Federal Rule 801(d)(2)(B)). The States and the District of Columbia are split as well. Harris v. U.S., 834 A.2d 106, 118 (D.C.2003) (agreeing with the “First Circuit, the D.C. Circuit, and then-judge (now Justice) Stevens that the United States is ‘bound by the position taken in a formal prosecution ... [and] cannot escape a view taken in a separate prosecution on the ground that one prosecution simply represents the views of its agents who participate’” (quoting Freeland v. United States, 631 A.2d ³²⁵ 1186, 1192 (D.C.1993))); State v. Worthen, 765 P.2d 839, 847-48 (Utah 1988) (holding that a letter written by the prosecuting attorney to the trial judge was admissible as a party admission); State v. Cardenas-Hemandez, 219 Wis.2d 516 , 579 N.W.2d 678, 686 (Wis.1998) (holding “that a court should not admit into evidence in a criminal proceeding a prior statement made by a prosecutor unless the court concludes that the three guidelines ... applied in Salerno ... are satisfied”); State v. Pearce, — Idaho -, — P.3d-, -, n. 8, 2007 WL 1544152 , 12 n. 8 (App.2007) (rejecting the permissive approach adopted by Kattar and Bakshinian and, instead, adopting the test in Salerno); Garland v. State, 834 So.2d 265, 267 (Fla.Dist.Ct.App.2002) (holding that a forensics report was admissible against the government as party admission); Allen v. State, 787 N.E.2d 473, 479 (Ind.Ct.App.2003) (holding that unsworn pre-arrest statement of a police officer was admissible against the government as a party admission); State v. Brown, 170 N.J. 138 , 784 A.2d 1244, 1254 (2001) (holding that the government had not adopted the statements of an informant submitted in a sworn affidavit in support of a search warrant submitted before the defendant’s indictment); Hoover v. State, 552 So.2d 834, 839-40 (Miss.1989) (adopting and applying the test in Salerno and McKeon to hold that the exclusion of the prosecutor’s statements at a former trial was in error); People v. McDaniel, 164 Ill.2d 173 , 207 Ill.Dec. 304 , 647 N.E.2d 266, 272 (1995) (holding that out-of-court statements by a prosecutor are not admissible as an admission of a party opponent); State v. Therriault, 485 A.2d 986, 992 (Me. 1984) (“We find nothing in the Federal Rules of Evidence nor in Maine’s adoption of M.R.Evid. 801(d)(2) suggesting an intent to alter the rule as explained in Powers and Santos.”); Rodela v. State, 829 S.W.2d 845, 849 (Tex.App.1992) (holding that a statement by a police sergeant was admissible against the government as an admission by an agent of a party opponent); State v. Villeda, 165 N.C.App. 431 , 599 S.E.2d 62, 66 (2004) (holding that a state trooper’s out of court statements were admissible against the government as an admission by an agent of a party opponent); State v. Asbridge, 555 ³²⁶ N.W.2d 571, 576 (N.D.1996) (“Although there appears to be some disagreement among the courts over the admissibility of statements by government attorneys after the initiation of proceedings, it appears fairly well-settled that statements by government agents at the investigative level are not admissible....”). In • light of the facts of the present case, we find the rationale in the line of cases that treat statements of government attorneys as eligible admissions to be more persuasive than the rationale offered in Santos and Kampiles .

Therefore, the exclusion of the desired part of Saunders’s statement at Bellamy’s trial was error. The court in Kampiles justified its decision on the basis that, because “the agents of the Government are supposedly disinterested in the outcome of a trial and are traditionally unable to bind the sovereign, their statements seem less the product of the adversary process and hence less appropriately described as admissions of a party.” Kampiles, 609 F.2d at 1246 (citations omitted). That rationale is not persuasive for at least two reasons. First, the Assistant State’s Attorneys unequivocally manifested an adoption of or belief in Saunders’s statement when they said, “And it is our belief, based on our investigation and review of everything, is that he’s been truthful,” “We want him to be truthful and we believe he has been,” and, “But our understanding is the truth has been reduced to writing and the statement he provided to us.” Without this express, in-court adoption of Saunders’s statement, our view may have been different.

Whether lesser actions by a prosecutor manifesting an adoption of a statement, such as merely submitting the statement in support of a court filing or acceptance of a plea, would render the statement admissible against the government in a subsequent proceeding remains to be seen. Second, based on the facts of this case, we are able to conclude that the prosecutors acted as authorized agents of the State of Maryland at Saunders’s plea hearing. It could not be otherwise. The judge presiding at Saunders’s plea hearing accepted the representations made by the prosecutors ³²⁷ as a sufficient substantive basis for Saunders’s plea.

If the statements of the prosecutors were not, in fact, statements of authorized agents of the State of Maryland, Saunders’s plea would be invalid. More generally, the rationale in Kampiles that government agents are “traditionally unable to bind the sovereign” simply does not apply to prosecutors. 18 There are many opportunities for a prosecutor to bind the government in the course of a criminal trial. 19 See Giglio v. United States, 405 ³²⁸ U.S. 150, 154, 92 S.Ct. 763, 766 , 31 L.Ed.2d 104 (1972) (“A promise made by one attorney must be attributed [for particular purposes and subjects] ... to the Government”). All of the motions, filings, pleadings, and arguments (or lack thereof) made by a prosecutor in a criminal case may serve to bind the government to a course of action or outcome. See Irving Younger, Sovereign Admissions: A Comment on United States v. Santos, 43 N.Y.U.L. Rev. 108, 109 (1968) (“In either criminal or civil cases, counsel for the government may make a concession or enter into a stipulation with respect to the facts.”); Poulin, swpra, at 431 (“Not only are prosecutors authorized to speak for the government in criminal cases, but they can also unquestionably bind the government on a range of legal matters through, for example, stipulations and plea agreements.”).

For example, relevant to the murder at the core of present case, prosecutors entered into plea agreements with Saunders and Welch. Such an agreement generally binds the State of Maryland to its terms. Tweedy v. State, 380 Md. 475, 488 , 845 A.2d 1215, 1222 (2004). Furthermore, we find it persuasive that the federal circuit most reluctant to admit evidence as an admission against the government, the Seventh Circuit, thus far has declined to extend its prohibition to government attorneys’ statements made in a court proceeding and has acknowledged the vitality of contrary authority.

See Zizzo, 120 F.3d at 1352 n. 4 (“We ³²⁹ note, however, that a number of courts have rejected that approach when dealing with statements made by government attorneys.” (citing Kattar and Morgan)). We also find persuasive, but need not adopt or select either at this time, the tests articulated by the Second Circuit and McCormick. McCormick’s treatise recommends a balancing test. The cases ruling against admissibility involve statements by agents at the investigative level, with statements by government attorneys after the initiation of proceedings being held admissible.

An admissibility dividing line based on the agent’s position in the government may properly balance the conflicting interests involved. While Federal Rule 801(d)(2) does not specifically address the question, it is very hard to find any support in its language or structure for a blanket exclusion of statements by government agents. However, a balancing approach of the type suggested above appears consistent with its basic approach and the various policy concerns involved. 2 Kenneth S. Broun et al., McCormick on Evidence § 259 (6th ed.2006). Under McCormick’s test, the result in Bellamy’s case is clear.

A prosecutor made an unambiguous assertion that a particular statement was true at the penultimate proceeding in the case against Saunders. The statement was not made at an early, investigative stage of the case. It was not made by an investigative agent of the State who maintains a seemingly neutral and unadversarial posture during the trial process, such as an investigator or forensics expert. The adoption of Saunders’s statements was made by the State’s authorized advocate.

A similar result obtains by applying the test articulated by the Second Circuit in Salerno and McKeon regarding inconsistent statements. As noted above, the three-part test requires (1) an assertion of fact clearly inconsistent with a subsequent assertion at trial; (2) the assertions of fact were equivalent to ³³⁰ testimonial statements; 20 and (3) that inference that the party-seeking to admit the evidence wants to have the fact finder draw is a fair inference, and there is not an innocent explanation for the inconsistency. The implicated elements of the test would be satisfied in the present case. The assertion that Welch shot Carter is clearly inconsistent with the State’s later assertion that Bellamy shot Carter twice.

Finally, the inference that Bellamy obviously desired the jury to draw, that the State at one point believed that Welch was the sole shooter, is a fair inference. 21 Because we conclude that the part of Saunders’s statements desired by Bellamy should have been admitted as an adoptive admission against the State, we must now determine if the error in excluding the statements was reversible error or harmless error. Hutchins v. State, 339 Md. 466, 475 , 663 A.2d 1281,1286 (1995). We conclude that the error in excluding the testimony was harmless, and thus, Bellamy’s conviction must be affirmed. 22 ³³² In Dorsey v. State, 276 Md. 638 , 350 A.2d 665 (1976), we adopted the test for harmless error announced by the Supreme Court in Chapman v. State, 386 U.S. 18, 23 , 87 S.Ct. 824, 827 , 17 L.Ed.2d 705 (1967). As adopted in Dorsey , the harmless error rule is: When an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed “harmless” and a reversal is mandated.

Such reviewing court must thus be satisfied that there is no reasonable possibility that the evidence complained of-whether erroneously admitted or excluded-may have contributed to the rendition of the guilty verdict. Dorsey, 276 Md. at 659 , 350 A.2d at 678 . In performing a harmless error analysis, we are not to find facts or weigh evidence. Instead, “what evidence to believe, what weight to be given it, and what facts flow from that evidence are for the jury ... to determine.” Dykes v. State, 319 Md. 206, 224 , 571 A.2d 1251, 1260-61 (1990). “ ‘Once it has been determined that error was committed, reversal is required unless the error did not influence the verdict; the error is harmless only if it did not play any role in the jury’s verdict.

The reviewing court must exclude that possibility beyond a reasonable doubt.’ ” Spain v. State, 386 Md. 145, 175 , 872 A.2d 25, 43 (2005) (Bell, C.J., dissenting) (quoting Ware v. State, 360 Md. 650, 716-17 , 759 A.2d 764, 799 (2000)) (Bell, C.J., dissenting). “ ‘To say that an error did not contribute to the verdict is, rather, to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed by the record.’ ” United States v. O’Keefe, 128 F.3d 885, 894 (5th Cir.1997) (quoting Yates v. ³³³ Evatt, 500 U.S. 391, 403 , 111 S.Ct. 1884, 1893 , 114 L.Ed.2d 432 (1991)). The “harmless error rule