Edmonds v. State

ADKINS, Judge. A Baltimore City jury convicted Keith Edmonds, appellant, of murdering Eric Gardener during a failed robbery. In this appeal, Edmonds complains that he was wrongfully convicted on the testimony of a co-defendant who “turned State’s witness” 1 in the midst of their joint trial. We must decide whether, after listening to most of the prosecution’s witnesses testify, his co-defendant should have been prevented from testifying for the prosecution.

The dilemma in this situation arises from the conflict between the co-defendant’s constitutional right to be present in the courtroom during trial, and appellant’s right under Maryland Rule 5-615 to have “the court ... order -witnesses excluded [from the courtroom] so that they cannot hear the testimony of other witnesses.” Although appellant admits there was no “technical violation” of Rule 5-615 in these circumstances, he argues that “the spirit if not the letter” of that rule was violated because his co-defendant undoubtedly was “taught” by the State’s previous witnesses. Because of the extensive remedies the trial court afforded to appellant, we conclude that the trial court did not err in refusing to exclude the testimony of the late pleading co-defendant. In addition, we find no reversible error arising from the trial court’s questioning of a police officer during a preliminary suppression hearing. We do agree with appellant, however, that he was erroneously convicted and sentenced on two murder counts even though only one murder was committed.

Accordingly, we shall affirm appellant’s convictions for ⁴⁴¹ felony murder, handgun offenses, attempted second degree murder, second degree assault, three counts of attempted armed robbery, and three counts of conspiracy to commit armed robbery, but vacate the conviction and sentence for second degree murder. FACTS AND LEGAL PROCEEDINGS Appellant Edmonds was charged, along with Lewis Bailey, with first degree murder, felony murder, and related counts. Before voir dire on August 28, 1999, the State had plea discussions with both defendants. The State’s plea offer for both Edmonds and Bailey was for guilty pleas on the felony murder, use of a handgun, and attempted murder charges, with a sentence recommendation of life imprisonment with all but 20 years suspended.

Attorneys for both defendants advised the court that their clients contested the 20 years as excessive. 1 Over the State’s objection, the trial court responded that “the best I could do would be life, serve the first 15.” He instructed defense counsel that “[i]f they are going to take it, take it. If not, let’s select the jury.” Both attorneys conferred separately with their clients, then advised that “we have a split decision” because Bailey was agreeable to the offer, but Edmonds was not. The trial court replied, “That’s a no. It has got to be both.

I won’t split it.” Trial proceeded on all counts against both Edmonds and Bailey. The court ordered all witnesses and potential "witnesses excluded from the courtroom. Officer Chris Boyd testified that on September 12, 1998, he responded to a call about a shooting in the 200 block of North Eutaw Street. When he arrived, he saw a group of people fleeing and two males lying on the ground.

One victim, later identified as Rudolph Lyons, had been shot in the eye, but was alive. The other victim was Eric Gardener. He was dead. ⁴⁴² Lieutenant James Shields, Jr., the primary homicide detective assigned to the Gardener murder, testified that when he arrived at the scene, he saw a gun on the ground. He later learned that it belonged to Gardener.

Detective Don Lee, who was assigned to the City’s “Violent Crime Task Force” investigating non-fatal shootings, received a call that same evening to investigate two “walk in gunshot victims” at the nearby Shock Trauma unit of the University of Maryland Hospital. At Shock Trauma, Bailey told Lee that he and Edmonds had been shot while trying to “hack” a ride. He was struck by two bullets, but did not see the shooter. He denied that either he or Edmonds had a gun or had shot anyone.

William Faulkner testified that he was with Lyons, his friend, and Gardener, his cousin, when they were shot. The three were walking down Eutaw Street when three men approached them, with their hands in their pockets. They pulled out guns, “[t]wo automatics and one revolver.” He heard them say something about a stick up before he' turned and ran. When he looked back, he saw Lyons’ “hands in the air and two of the men checking his pockets.” Then he heard gunshots and realized that several shots had been fired in his direction.

He returned to the scene several minutes later, and found both Lyons and Gardener on the ground. Faulkner claimed that neither he nor Lyons was armed that night, but said that Gardener had a 9 millimeter handgun. He was not able to identify any of the three assailants. Gary Salmon testified that in September 1997, he was incarcerated at the Baltimore City Detention Center.

While he was in the infirmary, Edmonds told him that he and two other men intended to commit a robbery, but the victim resisted, pulled out a gun, and a gun battle ensued. Edmonds claimed that the victim fired first, and that, although both of his friends were armed, he was the only one who fired his gun. According to Salmon, Edmonds also stated that after the shooting, the third male took their guns while Edmonds and his friend ran to the hospital. On his way, Edmonds tried to ⁴⁴³ wipe the gunpowder off of his hands.

Salmon admitted that he was awaiting sentencing on pending charges and hoped his testimony would benefit him. Daniel Vangelder testified as an expert in the field of gunshot residue analysis. He examined swabbings taken from both Edmonds and Bailey. He concluded that the test was negative for Bailey, but positive for Edmonds.

He found no residue on the hands of Faulkner or Lyons, but did find residues on the right hand of Gardener. Vangelder opined that this test indicated Gardener may have fired a weapon within a few hours of when the test was taken. James Waxter, a firearms examiner, testified as an expert that from evidence secured at the scene, he concluded that although only one 9 millimeter handgun was found at the scene, two to four guns were involved in the shooting. Lyons confirmed that Gardener had a 9 millimeter handgun that night. 2 He testified that all three robbers had guns.

When he first saw them, he could see the handle and outline of the gun in the pocket of the middle man, who was wearing grey sweat pants. The middle man would not let him pass. One of the others then pulled out a gun, pointed it at Lyons’ stomach, grabbed his gold chain, and said, “[Y]ou all know what time it is.” Lyons pushed the gun away, grabbed his attacker’s arm, and turned him around. At that point, he saw Faulkner running away.

He heard the middle man, who was directly behind him, say, “Where are you going son?” At that point, he heard a shot from the same direction, and “a whole lot of shooting started ringing out.” One of the bullets struck Lyons in the shoulder and he fell to the ground. While he was on the ground, he heard shots from what he believed, based on his familiarity with its sound, was Gardener’s gun. Then, “the guy I had been tussling with, who walked up on me ⁴⁴⁴ and put the gun in my stomach, stood overtop of me and shot me in the eye.” 3 Lyons testified that he could not say whether all three robbers had fired their weapons. He described what the two who shot him were wearing, but could not describe the third robber because he was in the shadows.

He identified Bailey from a photographic array, and at trial, as the “guy in the middle” who shot him in the shoulder. He remembered his hooded sweatshirt, hat, and gold tooth. He did not identify Edmonds from either the photo array or at trial, because he focused on the two who pulled the guns on him. He testified that he would be able to identify the third assailant who shot him in the eye, but that person was not present in the courtroom.

During trial, co-defendant Lewis Bailey and his attorney continued plea negotiations with the State. On the third day of trial, when the only State witnesses yet to testify were Lyons and Vangelder, Bailey decided to “turn State’s evidence,” in order to receive the benefit of a plea offered by the State. At the time, Bailey knew that Lyons claimed that Bailey was the man in the middle, and that his unidentified friend was the one who shot him in the eye. Bailey pled guilty to felony murder, two counts of attempted robbery, and one count of using a handgun in the commission of a crime of violence.

As part of the plea agreement, he agreed to testify against Edmonds and the alleged third assailant, identified as Anthony Archer. In exchange, he was to receive a sentence of life incarceration, with all but 15 years suspended, plus concurrent terms for the other crimes, including at least 5 years without parole for the handgun charge. The State proffered a summary of Bailey’s anticipated testimony about the robbery and shooting. Bailey would claim that Edmonds and Archer had guns, but he was unarmed.

This testimony contradicted two statements he made to police on the night of the murder. In those statements, ⁴⁴⁵ Bailey denied any involvement in the shooting of Gardener and Lyons, and said that Edmonds did not have a gun and committed no crime. Bailey’s testimony would corroborate the testimony of Faulkner and Lyons that at least two of the robbers fired their weapons, and support the prosecution’s theory that Edmonds was one of the robbers and one of the shooters that night. Although this plea was similar to the one that Bailey wanted to accept before the trial began, and which the trial court would not consider as a separate plea, the court accepted Bailey’s plea.

Edmonds’ attorney immediately moved under Rule 5-615 to exclude Bailey from testifying, on the grounds that Bailey’s testimony was fatally tainted by his presence in the courtroom while the State’s witnesses testified. The trial court denied the motion because Bailey had been a defendant up until that point, and therefore, was not subject to sequestration. Edmonds’ attorney objected that nevertheless, the prejudice was so severe that it undermined the fairness of the trial. Mr. Bailey gave two statements on the evening of this incident ... that were quite different than what he has now given the State....

The question becomes why is it different? ... It ... may be different because he ... based his change on what he’s heard from the State’s witnesses.... [H]is testimony now becomes more consistent with what Mr. Faulkner has testified to, more consistent with what Mr. Lyons has testified to.... [Tjhere is ... a possible due process violation to Mr. Edmonds to allow this witness to testify. Observing that “there [are] no Maryland cases on point,” the trial judge admitted “some uncomfortableness with the idea that the defendant goes to trial with one strategy thinking a certain set of events are going to occur, and then has to face changed circumstances during the middle of trial.” He concluded, however, that “any potential prejudice as a result of any conditioning is remedied by the availability [to] the defense of all the prior inconsistent statements.... ” Although the “notion that there will come times when people ⁴⁴⁶ who are sitting on one side of the trial table abandon that side and join the other side without advance[ ] notice” may be “constitutionally unpleasant,” the judge pointed out that “it’s been going on for time immemorial” and that no federal court has declared that a plea bargain during trial bars the late pleading co-defendant from testifying against the remaining defendant. I’m not going to bar the admission of the testimony and remain comfortable that cross-examination and impeachment is the remedy to any deleterious effect of the testimony.

He agreed to “give any curative [jury] instruction” that Edmonds suggested regarding the presence of Bailey in the courtroom while other State witnesses testified. Bailey testified that he had accompanied Edmonds and their friend Archer to a restaurant downtown where Archer saw some men wearing jewelry he liked. Archer told Edmonds and Bailey to get their guns. Bailey claimed that both Archer and Edmonds left to do so, and returned in 15 minutes.

Bailey insisted that he did not have a weapon. Outside the restaurant, the three would-be robbers approached the three victims on Eutaw Street. Edmonds and Archer pulled out their guns. Bailey was supposed to go through the three victims’ pockets.

Before he could do so, however, he “heard a lot of gunshots going off.” Bailey was shot. He did not see who shot him, but believed one of the bullets came from Gardener’s gun. Edmonds was also hit. As the three ran from the scene, Edmonds handed Archer his weapon.

On the way to Shock Trauma, Edmonds told Bailey to tell the police that someone had tried to rob them. Edmonds’ attorney cross-examined Bailey about inconsistencies between his two statements to police on the night of the murder and his trial testimony, and about his motives for taking a plea that required him to testify after hearing the State’s witnesses. Bailey testified that he wanted to plead guilty before trial, but the prosecutor would not let him because Edmonds refused to plead guilty. He denied that he ⁴⁴⁷ decided to “cop” a plea in exchange for his testimony only after hearing that Lyons would testify Bailey had a gun and was the one who shot him.

He claimed that Lyons had mistaken him for Archer, who “look[ed] just like” Bailey. Although he denied tailoring his story about Edmonds’ role in the shootings using what he heard from the State’s witnesses in order to obtain the plea by placing a gun in Edmonds’ hands that night, Bailey admitted that the night of the murder, he told Det. Lee that Edmonds did not have a gun. His recorded statement to Lee was played to the jury.

Edmonds did not testify. His defense attorney cross-examined the gunshot residue expert Vangelder. Vangelder admitted that the gunshot residue on Edmonds’ hands might have come from an object that was adjacent to a discharging weapon. He also acknowledged that the mere absence of gunshot residue did not necessarily establish that the person had not fired a weapon, but only that the residue had been removed.

The defense also recalled Det. Shields, because he took a written statement from Bailey on the night of the murder. Bailey had denied that Edmonds had a gun. The statement was introduced into evidence.

The trial court permitted appellant’s counsel to propose a jury instruction regarding the effect that hearing the State’s witnesses may have had on Bailey’s testimony. The court gave the following instruction: Prior to the beginning of trial, all witnesses were ordered sequestered by the Court. Sequestration means that all witnesses are excluded from the courtroom so they cannot hear the testimony of other witnesses. The purpose of the sequestration of witnesses is to prevent them from being taught or prompted by each other’s testimony.

When deciding whether to believe all, part, or none of the testimony of [Lewis] Bailey, you may consider that Mr. Bailey, unlike any other witness, was in the courtroom during many of the witness’ testimony and had the opportunity to hear them testify prior to his testifying. While this ⁴⁴⁸ was not a violation of the sequestration rule because at the time he was a party, you may still consider this fact in weighing Mr. Bailey’s credibility. In closing argument, appellant’s counsel also emphasized that Bailey’s presence in the courtroom during the State’s case influenced Bailey’s testimony. The jury convicted Edmonds.

This appeal followed. DISCUSSION I. Exclusion Of Co-Defendant’s Testimony Appellant contends that the trial court erroneously denied his motion to exclude co-defendant Bailey’s testimony. He bases this argument on the language and purpose of Rule 5-615, which provides: (a) In General. Except as provided in sections (b) and (c) of this Rule, upon the request of a party made before testimony begins, the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses ....

The court may order the exclusion of a witness on its own initiative or upon the request of a party at any time____ (b) Witnesses not to be excluded. A court shall not exclude pursuant to this Rule (1) a party who is a natural person____ (Emphasis added.) The Court of Appeals recently emphasized the important reasons for sequestration. The general purpose of the sequestration of witnesses “has been to prevent ... [witnesses] from being taught or prompted by each other’s testimony.” Additionally, the object of Maryland Rule 5-615 “is to prevent one prospective witness from being taught by hearing another’s testimony; its application avoids an artificial harmony of all the ⁴⁴⁹ testimony; it may also avoid the outright manufacture of testimony.” Tharp v. State, 362 Md. 77, 95 , 763 A.2d 151 (2000) (citations omitted); see also Opus 3 Ltd. v. Heritage Park, Inc., 91 F.3d 625, 628 (4th Cir.1996) (witness sequestration “is designed to discourage and expose fabrication, inaccuracy, and collusion”). Our judicial system has long recognized that sequestration of witnesses is “one of the greatest engines that the skill of man has ever invented for the detection of liars in a court of justice.” Id. at 628 (quoting 6 John Henry Wigmore, Wig-more on Evidence § 1838, at 463 (James H. Chadbourn ed., 1976)).

Nonetheless, appellant concedes — as he must — that there was “no technical violation [of Rule 5-615] inasmuch as Bailey was a co-defendant throughout the period during which he was present in the courtroom.... ” Instead, he seeks to apply the rule by analogy, contending that “the purpose of the rule mandated [Bailey’s] exclusion once he opted to enter a guilty plea.” Citing “principles of ‘fair play and equity,’ ” appellant urges us to extend the rule in order to guarantee its substantive protections when a co-defendant agrees to testify as part of a plea bargain agreement reached during trial, after the co-defendant has heard the State’s witnesses testify. As authority for this extension, appellant relies solely on our decision and rationale in Brent v. State, 63 Md.App. 197 , 492 A.2d 637 (1985). In Brent , we held that a trial court erroneously refused to recuse himself from serving as the judge in a bench trial. The judge previously presided at guilty plea proceedings of co-defendants, during which he heard factual statements implicating the appellant, and learned about the appellant’s prior willingness to plead guilty.

We recognized that the language of Maryland Rule 4-243(c)(5), which prohibits a trial judge from presiding in a bench trial once he has considered a plea from that defendant, 4 Was not directly ⁴⁵⁰ applicable because the judge never heard any formal plea agreement involving the appellant. We looked beyond the letter of that rule,