COLKLEY & FIELDS v. State

CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), J. In a retrial, the appellants, Clayton “Coco” Colkley and Darnell “Pooh” Fields, were convicted in the Circuit Court for Baltimore City by a jury, presided over by Judge George L. Russell, III. Colkley was found guilty of second-degree murder, attempted first-degree murder, conspiracy to commit first-degree murder, the illegal use of a handgun, and two counts of unlawfully wearing or carrying a handgun. Fields ⁶⁰⁰ was convicted of conspiracy to commit first-degree murder, second-degree assault, and the unlawful wearing or carrying of a handgun.

In this consolidated appeal, we must address a veritable decathlon of challenges. The Opening Round The crimes in this case were committed almost a decade ago, on May 28, 2003. Following an initial jury trial, presided over by Judge John M. Glynn in March of 2005, both Colkley and Fields were convicted in a variety of crimes. Both appealed to this Court.

On February 2, 2007, we filed an opinion in Fields v. State, 172 Md.App. 496 , 916 A.2d 357 , cert. denied, 399 Md. 33 , 922 A.2d 574 (2007), in which we reversed the convictions because of an improper response to a note from one of the jurors. The case was remanded for further proceedings. The Final Round The retrial before Judge Russell and a jury consumed eleven trial days. Colkley was convicted of the second-degree murder of James “Buck” Bowens, the attempted first-degree murder of William Courts, conspiracy to commit the first-degree murder of William Courts, and various handgun offenses.

Fields was also convicted of conspiracy to commit the first-degree murder of William Courts, a second-degree assault on William Courts, and a handgun charge. Although Yvette Hollie, as unintended collateral damage, was shot in the arm and hospitalized, none of the convictions was based on the attack on her. The Back Story The May 28, 2003 crimes constituted a single skirmish in an ongoing turf war between two rival drug-selling organizations in Baltimore City. In the larger picture, which inevitably intrudes itself into the narrative of May 28, 2003, there are so many murderers, accomplices of murderers, hirers of murderers, murder victims, and intended murder victims, all of whom have both legal names and wildly unrelated street names, that ⁶⁰¹ it is impossible to follow the game without a well-annotated scorecard.

If we appreciate from the opening scene that the appellant Clayton Colkley was a contract killer, the whole story will be a lot easier to follow. The accessory-before-the-fact who hired Colkley as a hit man was Eric Horsey. Horsey was the head of a major drug-distributing operation in East Baltimore. The apparently smaller but rival drug organization was run by the brothers William and David Courts.

Their operation distributed drugs from a geographic base centered on the intersection of Lafayette Avenue and Port Street, also in East Baltimore. It was the William and David Courts group that was the target of the May 28, 2003 shooting spree in the 1700 block of Port Street. Bad blood between Horsey and the Courts brothers had been brewing for at least five months. In January of 2003, David Courts had shot two of Horsey’s close associates in front of a Teamsters’ Hall.

Killed was a man known as “Tool,” who was Horsey’s best friend. Wounded was a man known as “Gigit,” who was Horsey’s brother. For the next month or so, Horsey went on a revenge-inspired shooting spree, by his own admission shooting “quite a few individuals” in the area of Port Street and Lafayette Avenues. Jermaine “Polish” Lee, a member of the Courts brothers’ group, was shot, along with several other members of the group, while “standing around Lafayette and Port.” It was in March of 2003 that Colkley first peddled his services to Horsey as a hired gun who, for a price, offered to eliminate both William Courts and David Courts.

The deal with Horsey was then on and off for several months. It was Colkley who led the execution-style raid of May 28, 2003. Horsey refused to pay him, however, when it came to light that one of the two desired targets, William Courts, had survived even after receiving ten bullets at point-blank range. When Colkley and Brian “Bee” Smith were successful in killing David Courts on the very next day, however, Horsey readily paid them $10,000 for the job.

This background is the ⁶⁰² context for a full understanding of what happened on May 28, 2003. May 28, 2003: Armageddon Instead of the Earps versus the Clantons, May 28, 2003 was scripted to be the showdown between Horsey and the Courts brothers, although neither Eric Horsey nor David Courts literally showed up at the corral that day. A key witness to the events of that day was Jermaine Lee. Lee was a part of the Courts brothers’ organization.

He was sitting on the steps of a house in the middle of the 1700 block of Port Street with William Courts and James Bowen when a car pulled quickly around the corner and stopped in front of them. The sound of the car startled the three men, who were “on point” (on their guard) as a result of the series of shootings that had been going on since January. They let down their guard immediately, however, when Bowens recognized the driver of the car as the appellant Darnell “Pooh” Fields, saying, “Nah. That car’s cool.

That’s Pooh’s car.” Lee testified that he also knew Fields from prior drug deals and had no reason to fear him. He described the car as a “cream colored” older model car, possibly a Grand Marquis, with tinted windows. After signaling to the others that there was no danger, Bowens approached the passenger side of the car “with his hand on his dip.” At that moment, however, the passenger door swung open, the appellant Colkley dove out in “a falling motion,” and Colkley shot Bowens in the chest from a distance of about the length of a car door. Despite being shot, Bowens ran in the direction of Lafayette Avenue.

Lee ran as well. As he did so, he noticed that the other occupants of the car had also opened their respective car doors and were firing guns. Lee fled through an alley to a friend’s house, from which he called an ambulance to the scene. He then ran to Lafayette Avenue where Bowens was lying on the ground, bleeding.

Lee then returned to Port Street, where he found William Courts also lying on the ground, badly wounded. Lee left the scene without waiting for the ambulance to arrive. Later that evening, Lee did go out with David Courts in an unsuccessful ⁶⁰³ retaliatory effort to find Colkley and Fields. Two days later, Lee learned that David Courts had been shot and killed.

After his arrest on July 2, 2003, Lee, through a series of photo arrays, identified both Colkley and Fields to the police as two of the May 28 shooters. The post-mortem examination showed that Bowens had died from a single gunshot wound to the chest. At the Johns Hopkins Hospital, William Courts survived, notwithstanding having received ten gunshot wounds at point-blank range. Yvette Hollie, who was not involved with either of the drug-distributing organizations, was simply visiting with friends at 1702 Port Street when she heard “a whole lot of shots” coming from down the street.

As she tried to lead a child inside the house, she was shot in the arm. In the taped statement Qonta Waddell gave to the police on July 2, 2003, which was played for the jury, Waddell stated that he, a member of the Courts brothers group, had been standing at the top of Port Street when the Grand Marquis drove down the street and stopped. He heard James Bowens approach the car and say, “That’s Pooh.” He then saw four people get out of the car and start shooting. Waddell hid behind a van until the shooting was over.

From photo arrays, he later identified three of the gunmen as the appellant Colkley, the appellant Fields, and Edwin Boyd, who was later murdered after Colkley discovered that he was turning over information to the police. The taped statement that Edwin Boyd had given to the police was also played before the jury. In that statement, Boyd said that he had been a part of the execution squad that drove to Port Street under the command of Colkley. When the shooting began, Boyd himself was in a one-on-one confrontation with Broderick Campbell, a member of the Courts brothers organization, and he, Boyd, took a bullet in the eye, ultimately losing the eye.

Eric Horsey, although he did not testify at the first trial, was a key witness at the retrial. As we have already fully described in setting out the background for May 28, 2003, ⁶⁰⁴ Horsey testified as to Colkley’s having solicited the job of hit man for both William and David Courts. He testified as to how Colkley, on the morning after the May 28 shootings, boasted about killing William Courts, describing how he had stood over Courts’s prostrate body and put ten bullets in him, in his chest, stomach, side, back, hip and arm. When it was learned that William Courts was not dead, however, Horsey refused to pay Colkley for that job.

In the world of Murder for Hire, the effort does not count; only the result matters. When a day or two later, Colkley reported that he had killed David Courts and that fact was then verified, Horsey paid Colkley $10,000 for the successful “hit.” The ballistics survey of the scene indicated that at least four (but possibly more) handguns had been fired, including one .45 caliber handgun, two nine millimeter handguns, and one .38 caliber or .357 caliber handgun. Except for Broderick Campbell, one of whose bullets hit Edwin Boyd in the eye, the Port Street target group was able to get off very little, if anything, by the way of defensive fire. Neither Colkley nor Fields have challenged the legal sufficiency of the evidence to support their convictions.

Their complaints are procedural. The Contentions Both appellants raise the following four questions: 1. Did the trial court err in excluding “exculpatory” testimony by one of the alleged victims, William Courts, from the first trial? 2. Did the trial court err in denying appellants’ request for a missing witness instruction relating to William Courts? 3.

Did the trial court err in denying appellants’ motion for a new trial after it was discovered that the jury conducted independent investigation during deliberations? 4. Did the trial court err in refusing to disclose to the defense Baltimore Police Department Internal Investí- ⁶⁰⁵ gation Division files concerning misconduct by officers who testified for the State and later in refusing to allow appellants to cross examine the officers about misconduct? Colkley alone raises five additional questions: 5. Did the trial court err in admitting a taped statement by a witness who died prior to retrial on the ground that appellant Colkley procured his unavailability? 6.

Did the trial court err in permitting the State to elicit a detective’s opinion of Colkley’s credibility? 7. Did the trial court err in admitting improper lay opinion testimony? 8. Must Colkley’s convictions be reversed as a result of the State’s failure to fulfill its discovery obligations? 9. Did the trial court impose an illegal sentence on Colk-ley?

Fields alone raises a single question: 10. Did the trial court impose an illegal sentence on Fields, giving him a greater sentence than he had received at his first trial? I. Prior Testimony of William Courts Both appellants were convicted of conspiring to murder William Courts. Colkley was also convicted of the attempted first-degree murder of William Courts.

Fields was convicted of a second-degree assault on William Courts. The targeted victim, William Courts, testified at the first trial in March of 2005. Because of his intervening conviction for perjury, however, William Courts was no longer competent to testify at the retrial in February of 2010. Because of Courts’s unavailability as a witness at the retrial, both appellants offered in evidence his recorded testimony from the first trial.

The State objected. Judge Russell ruled that the recorded testimony from the first trial was not admissible. The appellants now contend that they were thereby erroneously denied their right to offer ⁶⁰⁶ “exculpatory” testimony. This seemingly simple contention proliferates into an omnibus cluster of sub-contentions.

A. “Exculpatory” Versus “Non-Inculpatory” Although our first observation is by no means critical to our ultimate resolution of the larger contention, it is in our judgment worthy of note. We must raise an eyebrow at the zeal with which both appellants brandish the adjective “exculpatory.” With reference to the content of Courts’s earlier testimony, both appellants rely on Judge Davis’s summary of that testimony in Fields v. State, 172 Md.App. at 504-05 , 916 A.2d 357 : Neither Courts nor Hollie identified appellants as the shooters. Courts testified that, at the time of the shooting, he was sitting by himself on the steps of a house in the middle of the 1700 block of Port Street drinking beer and Jack Daniels. Bowens or “Buck” was down the street.

At some point, Courts heard a car slam on its brakes. The car was gray and had “dark tinted” windows. Someone wearing a baseball cap—Courts did not see who as he kept his head down—“hopped out” of the car and shot him. Courts attempted to flee, but fell to the ground and the gunman stood over him and continued shooting.

Courts was later taken to Johns Hopkins Hospital, where he was treated for ten gunshot wounds to his chest, stomach, side, back, hip and arm. Courts subsequently learned that Bowens and Hollie had also been shot and that Bowens had died. Courts did not recall Bowens saying anything to him or to anyone in the gray car prior to the shooting. He also was not acquainted with Colkley or Fields and did not know why anyone, including Colkley and Fields, would want to kill him or Bowens.

(Emphasis supplied). Unlike defense counsel, we do not interpret that testimony as “exculpatory.” It was valuable to the State at the first trial, of course, because it at least helped to establish the ⁶⁰⁷ corpus delicti of the crimes. In terms of establishing the criminal agency of his assailants, on the other hand, Courts’s testimony offered nothing for the self-evident reason that he had allegedly kept his head down and did not even look at his assailants. In terms of criminal agency, the testimony was neither inculpatory nor exculpatory.

It was frustratingly neutral; perhaps he was keeping faith with the code of the street. In any event, William Courts did not say that Colkley shot him, but neither did he say that someone other than Colkley shot him. Nor did he say that Colkley did not shoot him. His impact on criminal agency was, for whatever reason, zero.

In State v. Giles, 289 Md. 458, 469 , 212 A.2d 101 (1965), the Court of Appeals commented upon the necessary content of the term “exculpatory”: While we agree that evidence which is claimed to have been suppressed must be reasonably considered to be admissible and useful before suppression may be said to exist, this is not the sole test in determining when a suppression of evidence can be said to amount to a denial of due process. Not only must the evidence withheld be admissible and useful, but it must be such, if it had been offered in evidence, as would be capable of clearing or tending to clear the accused of guilt—i.e., it must be exculpatory. For a definition of “exculpatory” see Dean v. State, 381 P.2d 178 (Okl.[Crim.App.]1963). (Emphasis supplied).

That Oklahoma case of Dean v. State, to which State v. Giles referred, offered its definition of “exculpatory” at 381 P.2d at 181 : ‘Exculpatory’ is defined in Webster’s Dictionary as ‘clearing or tending to clear from alleged fault or guilt’. The various jurisdictions have adhered basically to this definition. The State of Texas in the case of Moore v. State, 124 Tex.Cr.R. 97 , 60 S.W.2d 453 [ (1933) ], said that ‘Exculpatory’ means clearing or tending to clear from alleged fault or guilt; excusing.’ In the case of Slate v. Langdon, 46 N.M. 277 , ⁶⁰⁸ 127 P.2d 875 [ (1942) ], used the following language: ‘The word ‘exculpate’ is employed in the sense of excuse or justification.’ (Emphasis supplied). Our point is that all that is non-ineulpatory is not thereby exculpatory, just as all that is non-exculpatory is not thereby inculpatory.

The absence of a quality is not the same thing as the opposite of that quality. There is a wide “No Man’s Land” of neutral connotation between the opposing verbal trench lines. The world is not necessarily black or white. In any event, this is nothing more than a passing observation on the uses and abuses of language and an affirmation that things are sometimes gray.

B. Perjury and Testimonial Incompetence As of the retrial of this case, it is indisputable that William Courts was unavailable as a witness. In the Circuit Court for Baltimore City in September of 2009, Courts was found guilty, upon his plea of guilty, of perjury. Pursuant to Maryland Code, Courts and Judicial Proceedings Article, § 9-104, he was thenceforth incompetent as a witness. Section 9-104 provides, simply but absolutely: “A person convicted of perjury may not testify.” See Myers v. State, 303 Md. 639, 643 , 496 A.2d 312 (1985); Howell v. State, 62 Md.App. 278, 285 , 489 A.2d 55 (1985).

The perjurious act itself had occurred back on January 28, 2002, when Courts was testifying before the juvenile court in Baltimore City. Although the fact of Court’s earlier false testimony was known to both the prosecution and the defense team at the time of the first trial of this case in March of 2005, the fact of such false testimony did not per se render Courts incompetent as a witness at that 2005 trial. A person is rendered incompetent as a witness not by the act of perjury but only upon an actual conviction for perjury. As the Court of Appeals held explicitly in Florentine v. State, 184 Md. 335, 340 , 40 A.2d 820 (1945): ⁶⁰⁹ Before one is disqualified as a witness under this provision, he must be convicted “of the crime of perjury.” A witness cannot be convicted of perjury by judicial fiat.

Whatever a judge may think regarding the want of truth of a witness testifying in his court, he cannot deprive him of his right under the law to testify, unless that right has been destroyed by a conviction of perjury in accordance with due process of law. (Emphasis supplied). See also Pullman Co. v. Ray, 201 Md. 268, 273 , 94 A.2d 266 (1953); Crunkilton v. Hook, 185 Md. 1, 5 , 42 A.2d 517 (1945); Erman v. State, 49 Md.App. 605, 620-21 , 434 A.2d 1030 (1981) (“Thus before one is disqualified as a witness under the provisions of § 9-104, he must be convicted of the crime of perjury.”); Vandergrift v. State, 17 Md.App. 1, 4-6 , 299 A.2d 451 (1973). The State, to be sure, argued at the hearing before Judge Russell that Courts’s testimony from the first trial should not be received in evidence at the retrial because even that earlier pre-conviction testimony was, based upon our present knowledge, just as incompetent as would be Courts’s subsequent post-conviction testimony.

The State, however, is absolutely wrong with respect to that theory of inadmissibility. Not yet having been convicted of perjury, Courts was undisputedly a competent witness at the first trial. Consequently, any subsequent use of that testimony would be equally competent, assuming that it otherwise qualifies for admissibility. Whether it “otherwise qualifies for admissibility,” therefore, becomes our next inquiry.

C. Rule 5-804(b)(5): Witness Unavailability Because of Party’s Wrongdoing Because William Courts, by virtue of his intervening conviction for perjury, was unavailable as a witness at the retrial, both appellants moved, pre-trial, to have his testimony from the first trial ruled to be admissible as an exception to the Rule Against Hearsay. The motion was made “pursuant to Maryland Rule of Criminal Procedure 5-804.” Maryland Rule 5-804, of course, is an umbrella provision, embracing no ⁶¹⁰ less than five separate exceptions to the hearsay rule under circumstances wherein the declarant is unavailable as a witness. The five exceptions are for 1) prior recorded testimony; 2) a dying declaration; 3) a statement against interest; 4) a statement of personal or family history; and 5) of present pertinence, a statement of a declarant who has been made unavailable as a witness because of a party’s wrongdoing. Judge Russell conducted a hearing on the merits of that motion on January 26, 2010.

It was immediately clear at the hearing that the hearsay exception being argued and urged upon the court was the particular exception spelled out by Rule 5—804(b)(5)(B), which provides: (b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (5) Witness unavailable because of party’s wrongdoing. (B) Criminal causes. In criminal cases in which a witness is unavailable because of a party’s wrongdoing, admission of the witness’s statement under this exception is governed by Code, Courts Article, § 10-901.

Maryland Code, Courts and Judicial Proceedings Article, § 10-901(a), in turn, provides: (a) In general.—During the trial of a criminal case in which the defendant is charged with a felonious violation of Title 5 of the Criminal Law Article or with the commission of a crime of violence as defined in § 14-101 of the Criminal Law Article, a statement as defined in Maryland Rule 5-801(a) is not excluded by the hearsay rule if the statement is offered against a party that has engaged in, directed, or conspired to commit wrongdoing that was intended to and did procure the unavailability of the declarant of the statement, as defined in Maryland Rule 5-804. (Emphasis supplied). Subsection (b) goes on to provide for a hearing and, in (b)(2), to allocate the burden of persuasion at such a hearing. The court will grant the exception if: ⁶¹¹ (2) The court finds by clear and convicting evidence that the party against whom the statement is offered engaged in, directed, or conspired to commit the wrongdoing that procured the unavailability of the declarant.

(Emphasis supplied). The appellants attempted to persuade Judge Russell that the State’s successful prosecution of William Courts for perjury constituted the “wrongdoing” that “procured” his unavailability as a witness. At the outset, there is a serious question as to whether the State’s legally permissible and ultimately successful prosecution of a defendant for perjury could ever constitute “wrongdoing” within the contemplation of § 10-901(a) and Rule 8-504(b)(5) even if some ancillary advantage accrued to the State as a result of such a conviction. In this case, however, it is unnecessary to address that question because Judge Russell was not persuaded in the first instance that the State conspired or engaged in a plan to bring about the conviction in order to make the declarant unavailable as a witness.

Whether such an endeavor, if it had occurred, could constitute “wrongdoing” within the contemplation of the rule is a question the resolution of which will have to await another day. The appellants’ argument as to causation relied exclusively on the common logical fallacy of post-hoc, ergo propter hoc. 1 The argument was that because Courts’s perjury prosecution came years after his false testimony had occurred but shortly after the appellants announced their intention to call Courts as a witness at the retrial, the perjury prosecution must have been designed to preclude his testifying. It, to be sure, was a plausible argument. Live witnesses, however, prevailed over the allure of “post hoc, ergo propter hoc” speculation.

The appellant called all three witnesses at the hearing. The key witness was Assistant State’s Attorney Nancy Olin, who handled the perjury prosecution. She testified that she first began considering the perjury prosecution at the “end of 2007” ⁶¹² after discussing the matter with a colleague in the United States Attorney’s Office. She further testified that at that time she was not even aware that Courts was a potential witness in a case against the appellants.

When she first learned of that situation, she immediately notified Deputy State’s Attorney Haven Kodak, and the two of them then contacted Assistant State’s Attorney Gerard Volatile, who had been assigned the present case against the appellants. Ms. Olin testified, “Mr. Volatile said, ‘Do whatever you know you have to. That’s your case. That’s fine.’ ” She further testified that she was unaware of the fact that Courts might be called as a defense witness.

She proceeded with her prosecution of Courts for perjury. Mr. Volatile was also called as a witness by the appellants. He confirmed Ms. Olin’s testimony in every detail. He advised Ms. Olin that she should “not let his case have anything to do with her case.” He expressly denied any plan or scheme to generate the perjury prosecution as a device to render Courts unavailable as a witness for the appellants.

The third and final witness was Ivan Bates, the defense attorney who represented Courts in the perjury case. When at one point he spoke to Volatile about the perjury case, Volatile told him, ‘Tour boy is a liar and, you know, Nancy is going to do what Nancy is going to do.” With respect to Volatile’s influence on the perjury prosecution, Bates’s conclusion was that “it really wasn’t in Gerry’s [Volatile’s] hands.” Bates further testified that he never mentioned to Ms. Olin that the appellants intended to call Courts as a defense witness. Not a single witness testified to any conspirational design or purpose within the State’s Attorney’s Office to prosecute Courts for perjury in order to render him unavailable as a witness in the present case. At the hearing, counsel for the appellant Colkley even conceded, “Ms. Olin is driving her own van.” He expressly stated that he was not accusing her of any wrongdoing.

Where then was the element of “wrongdoing” within the contemplation of Rule 5-804(b)(5)? The burden, of ⁶¹³ course, was allocated to the appellants to persuade Judge Russell of the State’s “wrongdoing” by clear and convincing evidence. Judge Russell’s ruling was loud and clear: Based upon the testimony and evidence that I have ended up receiving in this case and given the standard in this case, namely clear and convincing evidence, I do not believe that ... the Defendants have met their burden of establishing clear and convincing evidence for conspiring or directing to commit wrongdoing intended to establish the unavailability of the witness in this matter by prosecuting or convicting him of perjury in the case. As a result, I will end up denying the motion in limine to read the previously given testimony of Mr. Courts.

(Emphasis supplied). Judge Russell’s non-persuasion was not clearly erroneous. The appellants’ effort to qualify Courts’s testimony from the first trial pursuant to Rule 5-804(b)(5) failed. D. Rule 5-804(b)(l): The Road Not Taken The appellants would now like us to believe that Rule 5—804(b)(1) was the exception to the Rule Against Hearsay that they invoked.

It was not. In the cold light of dawn, there are always rueful afterthoughts of what might have been done differently. If the trial could only be replayed, Rule 5-804(b)(1) now looks far more attractive to the appellants as a qualifying possibility than does Rule 5-804(b)(5). The problem is that the trial cannot be replayed.

As the first of Rule 5-804(b)’s hearsay exceptions, (b)(1) is the familiar and classic hearsay exception for “Former Testimony.” Rule 5-804(b)(l) provides: (1) Former testimony. Testimony given as a witness in any action or proceeding or in a deposition taken in compliance with law in the course of any action or proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. ⁶¹⁴ If the appellants had sought to avail themselves of this hearsay exception, it does appear that it would have worked admirably. It, however, was not the exception urged before Judge Russell and admissibility pursuant to it has not, therefore, been preserved for appellate review. In terms of preservation, the appellants protest ardently that they preserved their invocation of § 5—804(b)(1) for appellate review because they at least used the inclusive term “ § 5-804.” Rule 5-804 is, of course, a genus, not a species.

Adjectivally, that makes it generic rather than specific. Preservation favors specificity. The appellants might as readily protest that they invoked Rule 5—804(b)(1) by citing generally to “the exceptions to the rule against hearsay.” A finer calibration than that, however, is required. The nationally acclaimed lecturer on the law of evidence, Professor Irving Younger, regularly reminded us that “a claim that says everything is a claim that says absolutely nothing.” The trial judge is not consigned to a defense-designed treasure hunt for hidden meaning.

Nor need he probe psychoanalytically into what defense counsel meant to say while saying something else. He need not figure out what a “C” paper might have said, had it been an “A” paper. In terms of unadulterated clarity, a legal motion in a trial court, as Theodore Roosevelt once said of a political speech, “should be a poster and not an etching.” Shadings and adumbrations have no place. From the beginning of the hearing on the motion to its conclusion, counsel for the appellants argued expressly in terms of Rule 5—804(b)(5) and the closely related § 10-901.

Section 5—804(b)(1) was never mentioned. The hearsay exception for “Former Testimony” was never mentioned. Three witnesses were called by the appellants. Each was questioned closely about the circumstances of the perjury prosecution.

Counsel for Colkley stated expressly that his argument was being made “pursuant to 10-901,” and that he was “going under 10-901.” Counsel further explained that the resolution of the motion was governed by the “clear and convincing” ⁶¹⁵ standard. That, of course, is the standard of persuasion applicable to § 5-804(b)(5), but a standard that has no applicability to § 5—804(b)(1). Judge Russell’s analysis and his ultimate ruling dealt exclusively with § 5-804(b)(5) and that exclusivity did not prompt a murmur of protest from the appellants. Their present claim that § 5-804(b)(l) was somehow before the court is a fantasy.

See State v. Northam, 421 Md. 195, 206 , 26 A.3d 344 (2011); White v. State, 23 Md.App. 151, 155-56 , 326 A.2d 219 (1975), cert. denied, 273 Md. 723 (1975). We see no error. E. Punting on Third Down: The Ineffective Assistance Claim With less than redoubtable confidence in their primary deployment, the appellants quickly fall back to a secondary defensive line. They now claim that if predecessor counsel failed to preserve the argument for admissibility pursuant to Rule 5—804(b)(1), then predecessor counsel, ipso facto, rendered ineffective assistance pursuant to the Sixth Amendment as measured by the two-pronged test of Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984).

Ordinarily, we would fully agree with the State that a claim of ineffective assistance should be resolved not on direct appeal but should be fully thrashed out in a post-conviction proceeding. “[A] claim of ineffective assistance of counsel generally should be raised in a post-conviction proceeding.” Smith v. State, 394 Md. 184, 199 , 905 A.2d 315 (2006). “[Djirect review is an exception that applies only when ‘the critical facts are not in dispute and the record is sufficiently developed to permit a fair evaluation of the claim.’ ” Mosley v. State, 378 Md. 548, 566 , 836 A.2d 678 (2003) (quoting In re Parris W., 363 Md. 717, 726 , 770 A.2d 202 (2001)). In this case, however, we find ourselves in full agreement with the appellants that “relegating [their] ineffective assistance of counsel claim[s] to post-conviction proceedings would serve no useful purpose and would be a waste of judicial ⁶¹⁶ resources.” The Sixth Amendment claim is so transparently devoid of merit that we do not hesitate to reject it here and now. As we have already discussed, the prior testimony in issue was not exculpatory and a lawyer’s disinclination to push for its admissibility would not, we hold, have been a failure to satisfy the performance prong of Strickland v. Washington. This innocuous bit of prior testimony, moreover, would not, in our judgment, have budged the trial result discernibly in either direction.

Because the testimony in question would not materially have helped the appellants at their retrial, therefore, the absence of such testimony would not satisfy the prejudice prong of Strickland v. Washington. Failing both of Strickland’s prongs, this secondary contention is twice bereft. We fully agree with the appellants that it would be a waste of judicial resources to require any further adjudication of this issue by a postconviction proceeding.

II

The Missing Witness Rule Contention No. 2 is only the Ghost of Contention No. 1, reappearing in a subtly altered guise. The convicted perjurer, William Courts, is also the star and title character of “The Missing Witness” controversy. The appellants argue that the jury should have been instructed that, because of the failure of the State to have called Courts as a witness, the jury could infer that Courts’s testimony would have been unfavorable to the State. Maryland State Bar Association, Maryland Pattern Jury Instructions-Criminal 3:29 states in pertinent part: If a witness could have given important testimony on an issue in this case and if the witness was peculiarly within the power of the State to produce, but was not called as a witness by the State and the absence of that witness was not sufficiently accounted for or explained, then you may decide that the testimony of that witness would have been unfavorable to the State.

(Emphasis supplied). In Christensen v. State, 274 Md. 133, 134-35 , 333 A.2d 45 (1975), Judge Smith quoted with approval from 1 Underhill, ⁶¹⁷ Criminal Evidence (rev. 6th ed., P. Herrick 1973), § 45 in giving us what has, ever since, been Maryland’s formulaic statement of the Missing Witness Rule: The failure to call a material witness raises a presumption or inference that the testimony of such person would be unfavorable to the party failing to call him, but there is no such presumption or inference where the witness is not available, or where his testimony is unimportant or cumulative, or where he is equally available to both sides. The presumption or inference that the testimony of a missing witness would be unfavorable is applied most frequently when there is a relationship between the party and the witness, such as a family relationship, an employer-employee relationship, and sometimes, a professional relationship. (Emphasis supplied).

See also Robinson v. State, 315 Md. 309, 314-15 , 554 A.2d 395 (1989); Wilson v. State, 148 Md. App. 601 , 654 n. 22, 814 A.2d 1 (2002); Woodland v. State, 62 Md.App. 503, 508-11 , 490 A.2d 286 (1985). A. As to Fields: Non-Preservation Simply to reduce the clutter, we observe initially that with respect to the appellant Fields, his contention that Judge Russell erroneously failed to give a “Missing Witness” instruction to the jury is dead in the water. Fields never requested such an instruction. Fields never objected, after jury instructions had been given, that no such instruction had been included.

Although Fields in his brief deftly refers not to what “he sought” in terms of the instruction but rather to what “the defense sought,” piggy-backing is not allowed. A silent Fields may not rely on the request made and the objection lodged by co-defendant Colkley. In Evans v. State, 174 Md.App. 549, 566 , 922 A.2d 620 , cert. denied, 400 Md. 648 , 929 A.2d 890 (2007), Judge Davis was loud and clear: The record clearly demonstrates that appellant’s counsel failed to object to the instruction at issue during the proceedings. In his brief, appellant relies solely on the objection raised by codefendant’s counsel.

However, a bedrock ⁶¹⁸ principle of Maryland law is that a defendant may not rely on an objection made by a codefendant for the purpose of raising an appeal as to that issue. (Emphasis supplied). See also Cooley v. State, 385 Md. 165 , 181 n. 7, 867 A.2d 1065 (2005); Hensen v. State, 133 Md.App. 156, 165 , 754 A.2d 1055 (2000); Ezenwa v. State, 82 Md.App. 489 , 572 A.2d 1101 (1990). B. The Rule Turned Upside Down Even as to Colkley, this entire scenario, from the outset, is inappropriate for invoking the Missing Witness Rule.

Except in the most hypertechnical sense, William Courts is not missing. Presumably, everyone knows where he can be found. It is simply the case that he is incompetent, as a matter of law, to give testimony as a witness. In view of the defense proffer that Courts’s testimony would be “exculpatory” and the express defense desire to have his testimony available, it seems to have been the defense that would have liked to call him.

It is, therefore, arguable that the State might seek to exploit the inability of the defense to produce an ostensibly exculpatory witness and to invoke the Missing Witness Rule for its own benefit, by requesting an instruction that from Courts’s absence the jury might infer that Courts’s testimony would have been unfavorable to the defense. Such a posture by the State, of course, would be absurd. It is equally absurd on the part of the defense. This is simply not a Missing Witness Rule situation.

Both parties can summon Courts to the trial if they wish to do so, but he will, as a matter of law, not be permitted to testify once he gets there. The defense protest that the rule has to be applied, if against anybody, against the State because it was the State that was responsible for Courts’s unavailability as a witness is nothing more than the ghost of Contention No. 1. That specter has already been laid to rest. The State bears no blamable responsibility for Courts’s legal incompetence as a witness.

That is something he did to himself. ⁶¹⁹ C. The Merits Could Not Be Satisfied In Any Event Even if, arguendo, the merits of the Missing Witness Rule were properly before us, Colkley could not satisfy them. In Pinkney v. State, 200 Md.App. 563, 578-79 , 28 A.3d 118 (2011), Judge Watts succinctly laid out the requirements for invoking the Missing Witness Rule: “[T]he missing witness rule applies where (1) there is a witness, (2) who is peculiarly available to one side and not the other, (3) whose testimony is important and non-eumula-tive and will elucidate the transaction, and (4) who is not called to testify.” A “relationship” between a party and a witness in the missing witness instruction context generally refers to a “family relationship, an employer-employee relationship, and, sometimes, a professional relationship” ... In this case, there was no relationship between the witness and the State. A police officer took the witness’s name and had no further contact with her.

(Emphasis supplied). See Woodland v. State, 62 Md.App. 503, 510 , 490 A.2d 286 (1985). In this case, even assuming that a convicted perjurer could be categorized as a potential “witness,” William Courts was not “peculiarly available to one side and not the other.” Courts was equally available, or equally unavailable, to the State and to Colkley alike. As both Christensen v. State, 274 Md. at 134 , 333 A.2d 45 , and Robinson v. State, 315 Md. 309, 321 , 554 A.2d 395 (1989), point out, the inference arising from the Missing Witness Rule “cannot be drawn when the witness is unavailable.” It is highly doubtful, moreover, that Courts’s hypothetical testimony could be characterized as “important” or as something that would elucidate the question of Colkley’s criminal agency one way or the other.

It is then questionable whether any party could be faulted for not calling a witness when everyone knows that the witness is not competent to testify. It is furthermore clear that the State was not in either a family relationship or an employer-employee relationship with William Courts. The traditional preconditions for ⁶²⁰ the Missing Witness Rule were not in any way satisfied in the instant case. D. It Is Never Error Not to Instruct Although it is sometimes error for a judge to give a Missing Witness Rule instruction where its preconditions have not been satisfied, Christensen v. State, 274 Md. at 134 , 333 A.2d 45 , it is never error for a court, in its discretion, not to give the Missing Witness Instruction.

Judge Cathell thoroughly explored for the Court of Appeals this unlimited discretion in Patterson v. State, 356 Md. 677, 684-85 , 741 A.2d 1119 (1999): Because most evidentiary inferences are questions of fact, not questions of law, missing evidence instructions can be distinguished from instructions on the elements of the crime that a defendant is charged with, instructions on the affirmative defenses that a defendant may utilize, and from evidentiary presumptions that the law recognizes but, without an instruction, a jury would not recognize. Elements, affirmative defenses and certain presumptions relate to the requirement that a party meet a burden of proof that is set by a legal standard. An evidentiary inference, such as a missing evidence or missing witness inference, however, is not based on a legal standard but on the individual facts from which inferences can be drawn and, in many instances, several inferences may be made from the same set of facts. A determination as to the presence of such inferences does not normally support a jury instruction.

While supported instructions in respect to matters of law are required upon request, instructions as to evidentiary inferences normally are not. (Emphasis supplied). In Keyes v. Lerman, 191 Md.App. 533, 546 , 992 A.2d 519 (2010), Judge Wilner (specially assigned) wrote to a similar effect: Whether, in given circumstances, an unfavorable inference may be drawn from missing evidence or witnesses is a ⁶²¹ matter' of fact, not law, and the court is under no obligation to give an instruction on the matter. It may do so, and in certain circumstances perhaps it should do so, but, as clearly stated in Patterson, failure to do so is not error or an abuse of discretion.

(Emphasis supplied). In Dansbury v. State, 193 Md.App. 718, 743 , 1 A.3d 507 (2010), Judge Hollander was writing exclusively with reference to the unlimited discretion of a trial court not to give a Missing Witness Instruction even when the facts would justify the giving of the instruction: The trial judge has discretion to grant or deny the instruction “when the facts would support the inference.” Robinson, 315 Md. at 319 n. 7 [ 554 A.2d 395 ]. Conversely, there is “no discretion to grant the instruction where the facts do not support the inference.” Id. See Patterson v. State, 356 Md. 677, 688 , 741 A.2d 1119 (1999) (“[A] missing evidence instruction generally need not be given; the failure to give such an instruction is neither error nor an abuse of discretion.”).

As this Court recently said, “the court is under no obligation to give an instruction on the matter. It may do so, and in certain circumstances perhaps it should do so, but ... failure to do so is not error or an abuse of discretion.” Keyes, 191 Md.App. at 546 [ 992 A.2d 519 ]. (Emphasis supplied). And see Robinson v. State, 315 Md. at 319 n. 7, 554 A.2d 395 (“We do not suggest that a trial judge would err in refusing to give a missing witness instruction even when the facts would support the inference ...

The discretion that is present in the trial judge is the discretion to grant or deny the specific instruction when the facts would support the inference.”). (Emphasis supplied). On this issue, the abuse of discretion is a one-way street. It is sometimes an abuse of discretion to give a Missing Witness instruction.

It is never an abuse of discretion not to give a Missing Witness instruction. For all of these reasons, there was no error in Judge Russell’s disinclination to give a Missing Witness instruction. ⁶²² III. Jury Misbehavior and Mistrials Our intent is to keep our consideration of this contention rigidly within the limited confines of the single instance of relatively minor jury misbehavior of which there is actual, historical evidence. We will not join the defense in engaging in untethered speculation about theoretically conceivable errors of which there is no evidence but which, of course, are always possible in a fallible world.

At a certain point during the jury’s deliberations, a note from the jury asked, “Can we get a dictionary?” Judge Russell initially proposed to counsel that he tell the jury that it would have to rely on the evidence that had been presented and on the law as to which it had been instructed. Although no one objected to that proposed response, the prosecutor suggested that the jury be given a dictionary. Counsel for the appellant Fields recommended giving the jury a Webster’s dictionary. The court then took a recess while Fields’s counsel retrieved a copy of Webster’s dictionary from her office.

When proceedings resumed, counsel for Colkley initially expressed an objection to giving a dictionary to the jury, but withdrew the objection after counsel for Fields argued, “I just think it’s a simple word, which is ‘related,’ and it really helps both people.” For present purposes it is important to note that at that point, all parties were agreed that nobody had any objection to the jury’s receiving a dictionary so that it could look up the meaning of a word. By general agreement of all the parties, that in itself would not have constituted prejudice. Just at that point, however, the court received another note from the jury on a totally unrelated subject, along with the oral communication (presumedly through the clerk) that “we don’t need a dictionary anymore; we already looked it up.” Perhaps the jury invoked Noah Webster electronically rather than in hard copy. That is the sum total of everything we know about any arguable jury impropriety.

That is the exclusive basis for the subsequent motions for a mistrial. ⁶²³ It is easy, however, to lose sight of that point. Counsel for the appellants reacted to the revelation that “we looked it up” as if the trial had struck an iceberg. Counsel for Fields speculated that one of the jurors might well have used a cell phone, because none of the parties had requested that the jurors’ cell phones be collected. Building on that speculation, counsel for Colkley then expressed the further fear that if the jurors were “looking things up” (the “things” being looked up were now being referred to in the plural), they might be exposing themselves to publicity about the case.

By way of requested relief, counsel for Colkley asked 1) that the jury be reinstructed that “they’re not supposed to be looking up anything or doing any of their own research of anything on the phone,” and 2) that the court “take their phones away.” Judge Russell did not order that the phones be confiscated, but he did give the following re-instruction to the jury: I want to make sure that I convey to you that there shouldn’t be any independent research or investigation of the case whatsoever. You make your decision exclusively based upon the evidence and the instruction of the law that I provided to you in this case. (Emphasis supplied). As of that reinstruction, the ruffled trial feathers seemed to settle down a bit and the jury deliberations calmly resumed.

It was but a lull before the storm. As the court prepared to break for lunch, the judge was routinely explaining the luncheon break rules when one of the juror’s cell phones rang out and jangled the already frazzled nerves in the courtroom. After a peremptory, “Turn that thing off,” and a supplemental, “Take the battery out or something,” Judge Russell repeated his earlier instruction not to “engage in any independent research or investigation.” Counsel asked for another rein-struction after the lunch break about not using cell phones during deliberations. Judge Russell declined, ruling that “my admonition to that particular juror will be satisfactory.” After the jury resumed its deliberations later that afternoon, however, each appellant moved for a mistrial.

Specula ⁶²⁴ tion as to what might have happened had continued to ferment and grow exponentially. Although counsel for Fields had initially posited that the jury wanted to look up the meaning of the word “relate,” she now expressed the fear that the jury wanted to look up a definition of “conspiracy.” Counsel for Colkley, on a higher trajectory, theorized