Boyd v. State

ELDRIDGE, Judge. Petitioner Ronald Boyd was convicted by a jury, in the Circuit Court for Baltimore City, of violating a protective order obtained by his daughter’s mother. In this Court, the petitioner argues that the Circuit Court erred in admitting hearsay evidence and that the Court of Special Appeals erred when it held that general objections during trial did not ⁴⁶¹ preserve the hearsay issue for appeal. Mr. Boyd also maintains that the intermediate appellate court erroneously affirmed the trial court’s admission of evidence of Mr. Boyd’s alleged prior bad conduct.

The respondent, the State of Maryland, argues that, “to the extent” that the hearsay issue was “preserved” for appeal, the Circuit Court’s rulings admitting the challenged evidence were correct. We shall reverse the Court of Special Appeals, hold that the hearsay issue was preserved, and hold that the admission into evidence of hearsay and of other “bad acts” was erroneous. I. Ronald Boyd and Cathleen Weaver are the parents of Lyric Weaver-Boyd who was born on May 7, 2003. Mr. Boyd and Ms. Weaver had not expressly agreed upon custody or a visitation schedule after Lyric’s birth, and Lyric lived with Ms. Weaver.

Until February 2004, Mr. Boyd visited his daughter whenever he wanted. On February 17, 2004, Mr. Boyd attempted to visit his daughter, and Ms. Weaver refused to permit the visit because Lyric was sleeping. This led to an argument between the two, with Mr. Boyd allegedly threatening Ms. Weaver. The next day, February 18, 2004, Mr. Boyd came to Ms. Weaver’s place of employment and allegedly threatened her.

On February 19, 2004, Ms. Weaver filed a petition in the District Court of Maryland for a protective order, and an interim protective order was issued on that date. The protective order was based on the February 17th and February 18th incidents. On February 23, 2004, with Mr. Boyd’s consent, a final protective order was entered by the District Court. The final protective order in pertinent part provided as follows: “After the appearance of the PETITIONER [WEAVER], RESPONDENT [BOYD], and in consideration of the petition and evidence, the Court makes the following findings: A. That CATHLEEN WEAVER, who is a Person(s) Eligible for Relief, is: ⁴⁶² An individual who has a child in common with the Respondent.

DAUGHTER B. That the Respondent consents to the entry of a Protective Order. Based on the foregoing findings, the Court hereby ORDERS: 1. That, unless otherwise stated below, this Order is effective until 12/01/2004. 2. That the Respondent SHALL NOT abuse, threaten to abuse, and/or harass THE PETITIONER. 3.

That Respondent SHALL NOT contact, (in person, by telephone, in writing, or by any other means) and/or attempt to contact THE PETITIONER. 4. That the Respondent SHALL NOT enter the Residence of CATHLEEN WEAVER at 3219 AVON AVE, BALTIMORE MD 21218. (Residence includes yard, grounds, outbuildings, and common areas surrounding the dwelling.) 5. That the Respondent SHALL STAY AWAY from The following child care provider(s): 1020 UPNOR RD 21215 AND 5926 FENWICK AVE 21215 The following place(s) of employment: ANDY NAILS AT 2226 E MONUMENT ST, BALTO MD 00000 The home of another family member at 356 E BELVE-DERE AVE 21218 6.

That the Custody of LYRIC BOYD is awarded to THE PETITIONER. 7. That visitation is granted to THE RESPONDENT. * * * “The children) shall be delivered and picked up for visitation and returned afterwards as follows: ⁴⁶³ CONTACT BARBARA FOWLKES — MOTHER OF PET. VISITATION HOURS SUNDAY AND MONDAY.” Pursuant to Mr. Boyd’s request, the District Court on April 14, 2004, modified the final protective order to provide specific hours for visitation. The modified final protective order specified visitation hours for Mr. Boyd every Sunday from 9:00 A.M. to 9:00 P.M. and every other Monday from 9:00 A.M. to 9:00 P.M. Until July 11, 2004, Mr. Boyd’s visitation with his daughter, pursuant to the modified order, took place without any problems.

On Sunday, July 11, 2004, however, another argument occurred. As scheduled according to the visitation arrangements in the modified protective order, Mr. Boyd on July 11th picked up Lyric from the home of Ms. Weaver’s mother, Barbara Fowlkes. He returned her that evening 50 minutes late. Upon returning his daughter, Mr. Boyd and Ms. Fowlkes engaged in an argument.

Mr. Boyd attempted to leave with Lyric, but several neighbors and a police officer prevented him from doing so. On the following Sunday, July 18, 2004, Ms. Weaver decided not to permit visitation, although she failed to inform Mr. Boyd of this decision. Ms. Weaver instead decided to take Lyric to Artscape, a cultural arts festival in Baltimore City. Mr. Boyd, along with his friend Pam Wilson, went to Ms. Fowlkes’s home to pick up Lyric for his scheduled visitation, but no one answered the door.

He subsequently telephoned Ms. Fowlkes twice, but she hung up on him each time. Shortly thereafter, Mr. Boyd arrived at Ms. Fowlkes’s home with two police officers. Ms. Fowlkes informed the police officers and Mr. Boyd that neither Ms. Weaver nor Lyric was there. The officers and Mr. Boyd left.

Ms. Weaver testified that, on her way to Artscape, she saw Mr. Boyd riding in a truck driven by Pam Wilson. Both the truck and Ms. Weaver were stopped at the same traffic light, although they were headed in different directions. Later, as Ms. Weaver continued on her route, she testified that the truck was following her, a few vehicles behind her. According ⁴⁶⁴ to Ms. Weaver’s testimony, she continued for several more blocks, eventually using her cell phone to call the police because the truck was still following her.

The police instructed Ms. Weaver to stop driving so that a police car could catch up with her. Ms. Weaver parked her car on McMeeken Street; the truck turned before reaching her and continued on another street. A police car pulled alongside Ms. Weaver, and an officer told Ms. Weaver that he would follow her to a parking place for Artscape and then accompany her to Artscape. Once she found a parking place, Ms. Weaver put Lyric in her stroller and started walking toward the police car.

As she was walking, Ms. Weaver noticed the truck drive past the police car, and the police officer also noticed the truck. Ms. Wilson, who was driving the truck, testified that Mr. Boyd “was upset because his daughter has chronic asthma and she had [his] daughter out in the pouring down rain.” Ms. Wilson parked the truck nearby, and Mr. Boyd “went over to the police officer with his visitation papers that he had gotten from the court.” The police officer told Mr. Boyd to wait in the truck, and Mr. Boyd then returned to the truck. The officer “ran him for a warrant check,” and thereafter arrested Mr. Boyd on an unrelated, open warrant. At no time on July 18th did Mr. Boyd approach or talk to Ms. Weaver.

The State later charged Mr. Boyd with violating the February 23, 2004, final protective order. The charge was based entirely upon the events on July 18, 2004. Before trial, the State filed a motion in limine seeking a ruling on the admissibility of evidence, including Ms. Weaver’s petition for the protective order, testimony concerning the February incidents, and testimony relating to the July 11, 2004, incident. At the pretrial hearing on the motion, the State argued that the petition itself, and testimony about the incidents, were relevant to understand why Ms. Weaver sought protection from Mr. Boyd.

According to the State, the information in the petition for a protective order and the proposed testimony required a “prior bad acts analysis.” The pertinent Maryland Rule of Evidence states: ⁴⁶⁵ “Rule 5-404. Character evidence not admissible to prove conduct; exceptions; other crimes. * * * “(b) Other Crimes, Wrongs, or Acts. — Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, or absence of mistake or accident.” The State asserted that the petition for a protective order and evidence regarding the February incidents fell under the special relevance exception of “absence of mistake.” The defense, at the hearing on the motion in limine, agreed that the protective order itself was admissible, but argued against the admissibility of the petition and other evidence concerning the February incidents, asserting that the evidence did not fall under any Rule 5-404(b) exception. Mr. Boyd’s attorney argued that “the nature of the acts that are alleged by Ms. Weaver that support her seeking protection are again, Your Honor, prior bad acts.

And unless that — they don’t seem to be relevant to the case and they seem greatly prejudicial to Mr. Boyd and not relevant — not probative — not helpful to the jury in deciding whether Mr. Boyd violated the final protective order which we concede was in place on February 23rd.” At the pretrial hearing, with regard to the incident on July 11, 2004, the State argued that testimony about the event should be admissible because it showed harassment by Mr. Boyd and showed Ms. Weaver’s state of mind. In addition, the State maintained that such evidence “goes to [Mr. Boyd’s] absence of mistake again because just a week prior he knew that there were problems.” The defense responded that admission of testimony regarding the July 11, 2004, incident would result in a “mini trial.” The Circuit Court, during the pretrial hearing, heard testimony from Ms. Weaver about the incidents on February 17th ⁴⁶⁶ and 18th so that it could assess whether, by clear and convincing evidence, the events described in the petition for a protective order took place. Thereafter, the court granted the motion in limine, ruling in favor of the State on the admissibility of the petition for the protective order, testimony about the February incidents described therein, and testimony concerning the July 11th incident. As to the petition and testimony about the February incidents, the Circuit Court stated: “I do find having listened to Ms. Weaver’s testimony that the State has proven by clear and convincing evidence that the conduct occurred.

Further, I believe that the probative value of the evidence outweighs any potential prejudice. So, I’m going to admit that evidence.” The court did not specify what category of admissibility, listed in Rule 5 — 404(b), encompassed the evidence about the February incidents. In explaining its ruling with respect to the July 11th incident, the court said: “I don’t think it’s another bad act on Mr. Boyd’s part. So I don’t think it needs to be analyzed under 5-404.

I think it has minimal probative value. “However, after thinking about it, it could tend to prove or disprove facts that could be relevant in this case. I don’t think it shows any intent to harass on his part or bears on the harassment. However, my understanding is that by the proffer the State’s evidence in this ease is going to be that Mr. Boyd and Ms. Wilson followed Ms. Weaver on July 18th which was a visitation day. “And I further understand from what the parties told me ... that Ms. Weaver had because of this incident refused to give Mr. Boyd visitation on that day. I think it may be important to the context to hear that. ‘When I say it’s potentially prejudicial I think it’s potentially prejudicial, but I don’t think it’s prejudicial in the sense it’s going to make the jury find Mr. Boyd guilty of harassment on July 18th.

I think it’s potentially prejudicial because I don’t particularly want to spend time trying what ⁴⁶⁷ happened at this fracas on July the 11th and I don’t want to divert the jury’s attention. “However, finding no prejudice in the sense that I think it would tend to make the jury convict Mr. Boyd of harassment on the 18th, I am going to permit some evidence of it. I don’t know what Mr. Boyd’s evidence is going to be, but it seems to me both parties may get into what happened before in terms of why ... what happened on the 18th happened on the 18th. “And I think it’s going to be very difficult to have evidence of what happened on the 18th without any evidence as to what happened on the 11th. So, I’m not going to exclude that evidence.” At trial, defense counsel repeatedly objected to the introduction of the evidence ruled on by the Circuit Court at the pretrial hearing on the motion in limine. During Ms. Fowlkes’s testimony, the following occurred: “[DEFENSE COUNSEL]: Your Honor, I just need to make a record.

I’m objecting to all these references to July 11th. All the testimony. I don’t want to keep objecting every time you ask her a question. “THE COURT: What do you mean by all the testimony? “[DEFENSE COUNSEL]: I’m trying to enter a standing objection to any testimony that’s elicited about the July 11th incident. “THE COURT: Okay. Well, in accordance with my prior ruling— “[DEFENSE COUNSEL]: I understand.

I’m just making a record.” At the beginning of Ms. Weaver’s testimony regarding the February 2004 incidents, the following occurred: “[DEFENSE COUNSEL]: Objection. “THE COURT: Overruled. ⁴⁶⁸ * * * “[DEFENSE COUNSEL]: Your honor, I’m going to object. May we approach the bench please? “THE COURT: Is this based on the pre-trial— “[DEFENSE COUNSEL]: Yes, Your Honor, but I just need to make a record at the bench please. “THE COURT: Well, I think you made it. * * * (Counsel approached the bench and the following ensued:) “[DEFENSE COUNSEL]: Your Honor, I'm sorry. I don’t — it’s just that this is another different incident that’s coming in so I’m going to make a standing objection to all. “THE COURT: This is the— “[DEFENSE COUNSEL]: This is the February incident. “THE COURT: February ... ? “[DEFENSE COUNSEL]: Yes. “THE COURT: The subject of the protective order. Right. “[DEFENSE COUNSEL]: Right.

And I’m just — I’m— “THE COURT: Well, I understood that. I don’t think you need to say anything more. “[DEFENSE COUNSEL]: Well, I need to protect the record, Your Honor. Our appellate lawyers say that if we don’t make a standing objection — you would think that the ruling on the motion in limine would be sufficient, but— “THE COURT: No, no, no. I know you need to make an objection during trial.

You’re correct. But I think if you make the objection from the bench you don’t need to put the grounds on the record all over again. That’s all I was saying. “[DEFENSE COUNSEL]: Thank you, Your Honor, It’s just— “THE COURT: So you could have made it from the table. That’s all I was saying. ⁴⁶⁹ “[DEFENSE COUNSEL]: — a standing objection.

Thank you. “THE COURT: All right.” Later, during testimony regarding the petition for a protective order, defense counsel objected: “Your Honor, again, just for the record we’re objecting.” Prior to the admission into evidence of the petition for the protective order, defense counsel objected as follows: “[DEFENSE COUNSEL]: Your Honor, again, I would just make an objection for the record based upon— “THE COURT: The same objection. “[DEFENSE COUNSEL]: The same objection. Yes, Your Honor. “THE COURT: The objection is overruled. State’s Exhibit No. 1 will be admitted.” Over defense counsel’s objections, the jury heard evidence about the February incidents and the July 11th incident. The jury also was given the petition for the protective order.

As previously mentioned, the jury found Mr. Boyd guilty of violating the protective order. The court sentenced Mr. Boyd to imprisonment for one year, but suspended all except for time already served, and placed Mr. Boyd on three years of supervised probation. Mr. Boyd appealed to the Court of Special Appeals, arguing that the trial court erred in admitting the petition for the protective order and some of the testimony because the petition and testimony contained inadmissible hearsay statements. He also challenged the trial court’s admission of the petition and other evidence relating to the February incidents on the ground that the evidence was inadmissible under Rule 5-404(b).

Similarly, Mr. Boyd argued that the July 11, 2004, incident should have been considered a “prior bad act,” that the trial court erred in failing to analyze it as such, and that evidence of the incident was not admissible under Rule 5-404(b). Mr. Boyd argued that the challenged evidence was not relevant, and that, even if it were, the prejudice outweighed any probative value. The State in the Court of ⁴⁷⁰ Special Appeals made a single argument, namely that the Circuit Court’s evidentiary rulings were, on the merits, correct. The Court of Special Appeals affirmed in an unreported opinion.

The intermediate appellate court initially addressed the hearsay issue, and decided that the issue was not preserved for appellate review. The appellate court held that defense counsel had made general objections during trial and that ordinarily such objections “preserve[] for appellate review all grounds upon which the evidence could be deemed inadmissible.” The Court of Special Appeals then stated that the “entire focus of the discussion at the hearing in limine concerning evidence of the February incident[s], including the petition itself, was whether the evidence was admissible as a prior bad act.” The intermediate appellate court held that, because of the discussions during the motion in limine hearing, Mr. Boyd’s general objections at trial failed to preserve the hearsay issue. The Court of Special Appeals also upheld the trial court’s decisions concerning the admissibility, under Rule 5-404(b), of the petition for a protective order and testimony about the February events. The intermediate appellate court held that, “[bjecause evidence of appellant’s repeated conduct is relevant to show whether he intended to harass Weaver, we affirm the court’s ruling to admit the petition and testimony describing the February” incidents.

In addition, the Court of Special Appeals held that admission of testimony concerning the July 11, 2004, incident was not erroneous because the trial judge explained that “it [would] be very difficult to have evidence of what happened on the 18th without any evidence of what happened on the 11th.” The appellate court concluded that evidence of the July 11, 2004, incident was relevant to understand Ms. Weaver’s conduct on July 18, 2004.

II

Mr. Boyd filed in this Court a petition for a writ of certiorari, presenting the following issues (although we have re-arranged their order): ⁴⁷¹ “1. Did the intermediate appellate court err in holding that a general objection at trial was insufficient to preserve a hearsay issue, because that ground of objection had not been stated during a pretrial motion in limine? “2. Is the conduct that formed the basis for entry of a protective order admissible in a prosecution for violation of that protective order? “3. Did the circuit court err in admitting evidence of other crimes and bad acts (some of which was hearsay), including the application for a protective order?” The State did not file a cross-petition for a writ of certiorari.

This Court granted Mr. Boyd’s petition, without adding or deleting any issues. Boyd v. State, 393 Md. 244 , 900 A.2d 751 (2006). The petitioner Boyd initially argues that the Court of Special Appeals erred in holding that defense counsel’s general objections at trial did not preserve the hearsay issue for appellate review. Mr. Boyd contends that this holding is “novel,” is contrary to the Maryland Rules, and is inconsistent with numerous opinions by this Court.

With regard to the merits of the evidentiary issues, Mr. Boyd argues that the petition for the protective order and some of the evidence concerning the incidents in February 2004 and on July 11, 2004, constituted inadmissible hearsay, that the petition and testimony about the February and July 11th events were inadmissible under Rule 5-404(b), that the challenged evidence was not relevant to any material issue in the case, and that, in any event, any probative value of the challenged evidence was exceeded by its prejudicial nature. The State, for the first time in its brief in this Court, argues that defense counsel’s objections at trial were not general objections. Alternatively, the State, without citing any supporting authority, contends that the Court of Special Appeals correctly held that general objections at trial failed to preserve for appellate review the hearsay issue where the hearsay issue was not raised at the pretrial hearing on the motion in limine. ⁴⁷² As to the merits, the State maintains that the petition for a protective order and some of the testimony about events prior to July 18, 2004, did not constitute hearsay because the evidence was not offered to prove the truth of the matter asserted. Rather, according to the State, the evidence supported the validity of the issuance of the protective order and helped explain Ms. Weaver’s state of mind when she did not allow Mr. Boyd to visit Lyric on July 18, 2004.

The State also contends that the trial court properly admitted the petition for a protective order and the testimony regarding the February incidents as evidence of prior bad acts because the evidence fell under the absence of mistake exception in Rule 5-404(b). In addition, the State asserts that testimony about the July 11th incident was proper and “necessary to show that Ms. Weaver was justified in not making her daughter available for visitation.” The State also claims that this evidence demonstrated that Mr. Boyd “knew there was conflict relating to visitation and that he was well-aware of the [limits] of the visitation order.” III. We shall first address the State’s arguments that the hearsay issue was not preserved for appellate review. A. The State, in its brief in this Court, injects an issue that had not previously been raised in the case.

The State for the first time argues that defense counsel’s objections to the admission of evidence at trial “did not constitute general objections.” (Respondent’s brief at 10). As previously pointed out, the State did not file a cross-petition for a writ of certiorari challenging the Court of Special Appeals’ holding that defense counsel made general objections at trial and that a general objection ordinarily “preserves for appellate review all grounds upon which the evidence could be deemed inadmissible.” In fact, in its answer to Mr. Boyd’s petition for a writ of certiorari, the State expressly acknowledged “that there ⁴⁷³ was a general objection to the admission of the protective order.” (Answer to Petition for Writ of Certiorari at 9). Under the circumstances, the contention that defense counsel’s objections at trial were not general objections is not before us. See Maryland Rule 8 — 131(b) (“Unless otherwise provided by the order granting the writ of certiorari, in reviewing a decision rendered by the Court of Special Appeals or by a circuit court acting in an appellate capacity, the Court of Appeals ordinarily will consider only an issue that has been raised in the petition for certiorari or any cross-petition ...”); Rhaney v. UMES, 388 Md. 585 , 596 n. 7, 880 A.2d 357 , 363 n. 7 (2005); Renbaum v. Custom Holding, 386 Md. 28 , 33 n. 2, 871 A.2d 554 , 557 n. 2 (2005); Edwards v. Corbin, 379 Md. 278 , 284 n. 3, 841 A.2d 845 , 849 n. 3 (2004) (“As this issue [presented for the first time in the brief] was not presented in the certiorari petition, a cross-petition, or added by order of this Court, it is not properly before us”), and cases there cited.

Even if the issue were before us, we would reject the State’s argument. The State relies on the trial judge’s reference to his “prior ruling” when defense counsel objected to the testimony of Ms. Fowlkes, and upon the trial judge’s reference to the “pre-trial,” when defense counsel objected to Ms. Weaver’s testimony, and defense counsel’s reply, “Yes, Your Honor, but I just need to make a record at the bench please.” According to the State, this shows that the objections “did not constitute general objections” but were “based on the prior bad acts or other crimes arguments that [defense counsel] asserted pre-trial.” (Respondent’s brief at 10). In our view, these vague references to the pretrial hearing did not amount to a specific ground for defense counsel’s objections at the trial. At no time during the trial did the trial judge ask defense counsel to delineate the grounds for the objections, and at no time did defense counsel specify the grounds.

A somewhat similar factual situation was present, and a similar argument by the State was made, in von Lusch v. ⁴⁷⁴ State, 279 Md. 255, 263-264 , 368 A.2d 468, 473 (1977). This Court’s response in von Lusch is applicable to the present case: “In the instant case, we do not believe that the statements by petitioner’s attorney were attempts to express specific reasons for the objection. Instead, they appear to be mere responses to the remarks of the trial court. * * * Both statements by counsel appear to have been prompted by remarks made by the trial court and not an attempt to delineate specific grounds for the objection.” See also Bailey v. State, 263 Md. 424, 426-427 , 283 A.2d 360, 361 (1971) (Upon the