Eiland v. State

MOYLAN, Judge. On the afternoon of December 4,1990, in what turned out to be a highly publicized murder case, James “Jay” S. Bias, III, the younger brother of former University of Maryland basketball star Len Bias, was senselessly gunned down in cold blood as he was leaving the parking lot of the Prince George’s Plaza Mall. In a joint trial before a Prince George’s County jury, presided over by Judge G.R. Hovey Johnson, the appellants, Gerald Wynn Eiland and Jerry Samuel Tyler, were convicted of that murder. Tyler was convicted of murder in the first degree and the use of a handgun in the commission of a felony.

He was sentenced to life imprisonment for the murder and to a consecutive term of 20 years for the handgun violation. Eiland was convicted of murder in the second degree, of the use of a handgun in the commission of a felony, and also of being an accessory after the fact to murder. He was sentenced to a term of 30 years for second-degree murder, ten of which were suspended, and to a consecutive term of 20 years for the handgun violation, ten of which were also suspended, for a total of 30 years to be served. Recogniz ⁶³ ing the then-present inconsistency between convictions for murder and accessory after the fact to murder, Judge Johnson vacated the conviction on the accessory charge and entered a judgment of acquittal as to it.

Each appellant has filed, briefed, and argued a separate appeal. Because they were both convicted at a joint trial, because the evidence admitted as to each was also admitted as to the other, and because of the broad (albeit not total) overlap of the issues raised by the two appellants, we have elected to consolidate the two appeals for purposes of this opinion. Both appellants raise the following four contentions: 1. That the evidence was not legally sufficient to support the convictions; 2.

That Judge Johnson erroneously refused to sever their trials; 3. That Judge Johnson erroneously admitted in evidence the last words of Jay Bias; and 4. That the State unconstitutionally used its peremptory challenges to exclude women from the jury solely on the basis of gender. The appellant Tyler alone raises one additional contention: 5.

That the State unconstitutionally used its peremptory challenges to exclude blacks from the jury solely on the basis of race. The appellant Eiland alone also raises one additional contention: 6. That his inconsistent convictions for murder and accessory after the fact to murder dictate that the sentence for murder should be vacated and the case remanded with instructions to sentence him only on the accessory charge. The Factual Background In assessing the legal sufficiency of the evidence, of course, we take that version of the facts, including the inferences that can fairly be drawn from those facts, that is most favorable to the State’s case. ⁶⁴ Jay Bias worked at the Hyattsville Branch of the Sovran Bank.

On the afternoon of December 4, 1990, two of his coworkers, Andre Campbell and Tydus Mathis, decided to drive to the nearby Prince George’s Plaza Mall during their lunch hour. Hearing their plans, Bias asked to accompany them. He had recently purchased from Kay Jewelers, located in the mall, a ring, which was being sized for him and which he wanted to show to his coworkers. The three drove to the mall in Mathis’s car.

While Mathis went off to browse in another part of the mall, Bias and Campbell went to Kay Jewelers, where they were waited on by Shaunelle Tyler, an employee of the store and the wife of the appellant Jerry Tyler. Bias spoke to Shaunelle Tyler about the ring and showed it to Campbell. At approximately the same time, the appellants, Jerry Tyler and Gerald Eiland, arrived at the mall in a green Mercedes Benz, owned by Tyler’s father but driven by Eiland. The two of them headed directly for Kay Jewelers.

As Bias and Campbell were leaving the jewelers, Jerry Tyler entered. He apparently believed that his wife had been flirting with Jay Bias. A turbulent argument ensued between Tyler and his wife, culminating in Tyler’s hurling a stapler at her. The manager of Kay Jewelers thought it prudent to end the dispute by escorting Tyler out of the store.

Bias and Campbell, now rejoined by Tydus Mathis, were standing just outside when Tyler was escorted to the exit. Visibly agitated, Tyler turned to Bias and said, “You can have her.” Bias replied “that he didn’t want [Tyler’s] girl” and that “he was just buying a ring.” Tyler, his agitation persisting, challenged Bias to “[c]ome on outside, we can take care of this outside.” Bias initially started toward Tyler but was stopped by Mathis. During the entire verbal encounter, the appellant Eiland was standing just two to three steps away from Tyler. Heeding Mathis’s advice of restraint, Bias, with Campbell and Mathis, walked toward the mall exit leading to the rear parking lot.

The two appellants were making their way ⁶⁵ toward another exit, leading to the front parking lot, when Tyler again yelled to Bias to “step outside,” adding, “I’ve got something for you outside; I’ll cap you.” 1 At that time, Eiland was still standing within two to three feet of Tyler. As they prepared to leave the parking lot, Mathis was in the driver’s seat of his car, Campbell was in the rear passenger compartment, and Bias sat in the front passenger seat. As they approached the exit leading onto Toledo Terrace, they came to a stop in a left-turn lane as they waited for two cars in front of them to make a left turn. At that point, Mathis noticed a green Mercedes “speed” toward them from the opposite side of the parking lot.

As the Mercedes pulled abreast of them in the lane to their immediate right, Mathis noticed that Eiland was driving the car and that Tyler was sitting in the front passenger seat. Because the flow of traffic on Toledo Terrace was heavy, Mathis was not able to proceed immediately to exit the parking lot. Indeed, when the Mercedes first pulled abreast of Mathis’s Toyota, the Toyota was “stacked up” behind two other cars waiting to make a left-hand turn. The right-hand lane was free, however, and there was nothing to impede the Mercedes, driven by Eiland and occupied by Tyler, from going forward.

Eiland, nonetheless, brought the Mercedes to a stop parallel with Mathis’ Toyota. When, a few seconds later, the Toyota was able to “inch” forward one automobile length before stopping again, Eiland moved the Mercedes proportionately forward to maintain the parallel relationship between the two cars. Mathis noticed that the left front window of the Mercedes was open. He saw Eiland press backward against the driver’s seat as Tyler stretched across in front of him and yelled out the window.

As Eiland pressed his body back against his seat, allowing Tyler to lean across in front of him, his hands were on the low arc of the steering wheel. The testimony was clear that they were not high on the ⁶⁶ steering wheel or even at midpoint but were as low as they could be without actually releasing the wheel. Campbell, who also observed this, noticed that Tyler had his right hand placed below his knee. Tyler initially appeared “scared” but then became very angry.

Because the windows of the Mathis vehicle were closed, neither Mathis nor Campbell could hear the words being yelled by Tyler. As the Mathis vehicle moved slightly forward toward the intersection, Eiland kept the Mercedes parallel with it. As Campbell was briefly turning his head away from the direction of the Mercedes, between seven and ten bullets were fired into the right side of the Mathis vehicle. Two of those bullets struck and mortally wounded Jay Bias.

The Mathis vehicle made an immediate left-hand turn onto Toledo Terrace and drove toward the Leland Memorial Hospital, where Bias was rushed to the emergency room. Shortly thereafter, Bias was pronounced dead by the hospital’s attending physicians. Immediately after the shooting, Eiland drove the Mercedes away in an opposite direction from that taken by the Toyota. The Legal Sufficiency of the Evidence The test for legal sufficiency of evidence to convict that has always prevailed in Maryland, and is almost universally accepted elsewhere, is the constitutional test for sufficiency under the Due Process Clause clearly spelled out in Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781 , 61 L.Ed.2d 560, 573 (1979): “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (emphasis in original).

Wiggins v. State, 324 Md. 551, 566-567 , 597 A.2d 1359 (1991); Wilson v. State, 319 Md. 530, 535-536 , 573 A.2d 831 (1990); Tichnell v. State, 287 Md. 695, 717 , 415 A.2d 830 (1980). ⁶⁷ It is, moreover, clear that the test for legal sufficiency is precisely the same when we are measuring 1) whether the trial judge in a jury trial is in error, as a matter of law, in submitting the case to the jury over a timely defense motion for a judgment of acquittal or 2) whether the trial judge sitting as the fact finder in a court trial is clearly erroneous in rendering a verdict of guilty. In Bedford v. State, 293 Md. 172, 174-175 , 443 A.2d 78 (1982), the Court of Appeals approved and adopted the analysis made by Judge Orth for this Court in Williams and McClelland v. State, 5 Md.App. 450, 458 , 247 A.2d 731 (1968), wherein we concluded: “ ‘Once the question of the sufficiency of the evidence is properly before us, we believe that the criteria used to determine the question is the same, be the verdict rendered by the court or a jury.’ ” See also Metz v. State, 9 Md.App. 15, 23 , 262 A.2d 331 (1970); Wilson v. State, 319 Md. 530, 535-536 , 573 A.2d 831 (1990). Both appellants grasp desperately at straws as they attempt to hang their legal insufficiency claims upon the purported notion that whenever circumstantial evidence forms part of the State’s case, a conviction cannot be upheld unless “the circumstances, taken together, are inconsistent with any reasonable hypothesis of innocence.” Wilson v. State, 319 Md. 530, 537 , 573 A.2d 831 (1990). That unfortunate language, which has a vestigial validity in perhaps one percent of the cases in which it is invoked, is profligately bandied about on numberless occasions when it is not remotely apposite. 2 As a general proposition, proof of guilt based in whole or in part on circumstantial evidence is no different from proof of guilt based on direct eyewitness accounts.

In Nichols v. State, 5 Md.App. 340, 350-351 , 247 A.2d 722 ⁶⁸ (1968), Judge Orth attempted to lay to rest the ghost of this oft-invoked but seldom pertinent language. Judge Smith, speaking for the Court of Appeals in Gilmore v. State, 263 Md. 268, 292-293 , 283 A.2d 371 (1971), vacated in part, Gilmore v. Maryland, 408 U.S. 940 , 92 S.Ct. 2876 , 33 L.Ed.2d 763 (1972), quoted with approval and adopted Judge Orth’s analysis for us in Nichols : “ ‘The law makes no distinction between direct evidence of a fact and evidence of circumstances from which the existence of a fact may be inferred. No greater degree of certainty is required when the evidence is circumstantial than when it is direct, for in either case the trier of fact must be convinced beyond a reasonable doubt of the guilt of the accused____ ... “[C]ircumstantial evidence need not be such that no possible theory other than guilt can stand____ It is not necessary that the circumstantial evidence exclude every possibility of the defendant’s innocence, or produce an absolute certainty in the minds of the jurors.” ’ ” (citations omitted). Although it might have been more efficacious if Chief Judge Murphy in Wilson v. State, 319 Md. 530 , 573 A.2d 831 (1990), had simply stomped upon this mischievous language once and for all, he nonetheless effectively cabined it to the rare and unusual situations where it still possesses some residual vitality.

He reaffirmed, at 319 Md. 535 , 573 A.2d 831 , that the Jackson v. Virginia standard for legal sufficiency is the ultimate test, whatever the nature of the proof. He reaffirmed that “[a] conviction may rest on circumstantial evidence alone.” 319 Md. at 536 , 573 A.2d 831 . See also Veney v. State, 251 Md. 182, 201 , 246 A.2d 568 (1968). He reaffirmed the analysis of Judge Smith in Pressley v. State, 295 Md. 143, 148-150 , 454 A.2d 347 (1983) that, generally speaking, circumstantial evidence is to be analyzed not as a “chain,” no stronger than its weakest link, but rather as a “cable,” the strength of which does not depend upon a single strand. 319 Md. at 536 , 573 A.2d 831 . ⁶⁹ He reaffirmed the unwavering common denominator of the legal sufficiency measurement: “[W]hether the evidence is circumstantial or direct, ‘ “[n]o greater degree of certainty is required ... [because] in either case the trier of fact must be convinced beyond a reasonable doubt of the guilt of the accused.” ’ ” Id.

(quoting Gilmore v. State, 263 Md. 268, 292 , 283 A.2d 371 (1971)). The small kernel of residual vitality is to be found not in cases where circumstantial evidence of guilt combines with direct evidence of guilt nor even in exclusively circumstantial cases where multiple strands of circumstance point in the same direction, reinforcing and corroborating each other. It is to be found, rather, in those cases where the State’s proof of guilt depends exclusively upon a single strand of circumstantial evidence. As part of the very nature of such proof, the circumstance must serve as the predicate for an inference of guilt.

The treacherous language (because it is so frequently abused) simply states the truism that a fact finder could not fairly be convinced beyond a reasonable doubt if the circumstantial predicate could also give rise to reasonable inferences of innocence. It is self-evident that a finding of guilt based upon a process of elimination must effectively eliminate the other reasonable possibilities. See, e.g., Tucker v. State, 244 Md. 488 , 224 A.2d 111 (1966). The classic instance where the concept retains vitality is where the defendant is a workman or other employee whose fingerprint is found in a bedroom from which jewels are stolen.

To predicate guilt upon a process of elimination, it is necessary reasonably to eliminate as candidates for the theft those others who also had access to the bedroom. See Wilson v. State, 319 Md. 530, 538 , 573 A.2d 831 (1990). Until reasonably eliminated, each alternative candidate remains, by definition, a “reasonable hypothesis of [the defendant’s] innocence.” See, e.g., Warfield v. State, 315 Md. 474 , 554 A.2d 1238 (1989). ⁷⁰ Combine the circumstantial evidence of the fingerprint, however, with direct observations of the defendant’s returning to enter the room at an unusual hour of night or of his leaving the room with a bulge in his pocket that was not there before he entered and guilt is no longer dependent upon a single strand of circumstantial evidence. Combine the circumstantial evidence of the fingerprint with other independent circumstantial evidence such as an expressed expectation of imminent wealth made just before the larceny or the display of unusual affluence just after the larceny and guilt is no longer dependent upon a single strand of circumstantial evidence but rather upon a cable made up of multiple strands.

The mere fact that a direct observation may give rise to an inference of greater legal significance, moreover, does not transmute direct evidence into circumstantial evidence. Almost every murder verdict, for instance, infers an intent to kill from the observed directing of a deadly weapon at a vital part of the human anatomy. Such eyewitness murders do not thereby become cases of circumstantial evidence. In the cases at bar, this whole concept of having to eliminate all reasonable hypotheses of innocence when a case is based solely on circumstantial evidence is not remotely apposite.

Neither the case against Tyler nor the case against Eiland is based exclusively upon a single strand of circumstantial evidence. Neither case, moreover, is based upon even multiple strands of circumstantial evidence. Both cases rest not only in part but almost exclusively upon direct evidence. In the case against Tyler, eyewitnesses described the fight between Tyler and his wife.

Eyewitnesses described Tyler’s anger at Jay Bias, whom Tyler obviously believed to have been flirting with his wife. Eyewitnesses described Tyler’s challenge to Bias to “come outside and settle this.” An eyewitness described Tyler’s direct threat to shoot Bias (to “cap” him) just minutes before he did just that. Eyewitnesses described his speeding across the parking lot in a ⁷¹ car driven by his confederate to intercept the vehicle carrying Bias. Eyewitnesses described his leaning angrily toward the open window of the Mercedes and his reaching for something down at his knee-level.

Eyewitnesses described seven to ten gunshots immediately ringing out. Eyewitnesses described the fatal consequences of two bullets striking the body of Jay Bias. There was nothing remotely circumstantial about the evidence of Tyler’s guilt. Tyler’s argument that Eiland, rather than Tyler, must have done the shooting because 1) at five feet, seven inches of height, his (Tyler’s) arms were too short to have permitted him to reach with a gun out the driver’s window from the passenger side and 2) he could not have fired from within the car because a) the flash would have burned Eiland, who was not burned; b) the report would have deafened Eiland, who was not deafened; and c) the shell casings would have been ejected inside the car, which they were not is simply an ingenious jury argument and we are not jurors.

In the case against Eiland, eyewitnesses described his close association with Tyler at all critical times. Eyewitnesses described his being present when the verbal altercation between Tyler and Bias took place. Eyewitnesses described his close proximity to Tyler when Tyler threatened to “cap” Bias. Eyewitnesses described his speeding across the parking lot to intercept the vehicle containing Bias.

Eyewitnesses described his bringing of the Mercedes deliberately abreast of the Bias vehicle and then maintaining that parallel position. Eyewitnesses described his pressing backward against the seat and his lowering of his arms to take himself out of the line of fire. Eyewitnesses described his then taking off in an opposite direction. There was nothing remotely circumstantial about the evidence of Eiland’s guilt as an aider and abettor.

Neither the case against Tyler nor the case against Eiland was based upon circumstantial evidence at all. A fortiori, neither was based solely upon circumstantial evi ⁷² dence generally. A fortiori, neither was based solely upon a single strand of circumstantial evidence. All talk, therefore, about having to eliminate all reasonable hypotheses of innocence, as some kind of supplemental test superimposed upon the ordinary legal sufficiency test, is irrelevant fantasy.

The Severance Issue Each appellant claims that Judge Johnson erroneously refused his motion to have his trial severed from that of his co-defendant. There is no shred of merit in the contention. Maryland Rule 4-253(a) provides: “On motion of a party, the court may order a joint trial for two or more defendants charged in separate charging documents if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.” Both Tyler and Eiland were, in separate charging documents, alleged to have participated in the same act, to wit, the murder of Jay Bias. The State, a party, moved for a joint trial.

Judge Johnson granted the motion. The terms of Rule 4-253(a) were eminently satisfied. Rule 4-253(c) goes on to provide, in pertinent part: “If it appears that any party will be prejudiced by the joinder for trial of ... defendants, the court may ... on motion of any party, order separate trials of ... defendants ...” The necessary precondition for the granting of a trial severance is the likelihood of prejudice. What then, under the law of this state, does that term of art “prejudice” mean?

Has either appellant suffered “prejudice,” as defined by Maryland law? The case law is unequivocal. “Prejudice as a term of art means damage from inadmissible evidence, not damage from admissible evidence.” Sye v. State, 55 Md.App. 356, 362 , 468 A.2d 641 (1983). In Osburn v. State, 301 Md. 250, 254-255 , 482 A.2d 905 (1984), the Court of Appeals quoted ⁷³ this passage from Sye v. State with approval, as it further observed, at 301 Md. 254 , 482 A.2d 905 : “In McKnight v. State, 280 Md. 604 , 375 A.2d 551 (1977), we established the general test for the joinder/severance of multiple defendants ...; the evidence offered must be mutually admissible as to each defendant ... for joinder to be proper.” (emphasis supplied). So long as most of the evidence at a joint trial is mutually admissible against both defendants, joinder is proper.

As Judge Bloom recently noted for this Court in Cook v. State, 84 Md.App. 122, 130 , 578 A.2d 283 (1990): “[Jjoinder of defendants for trial is favored for reason of judicial economy ... and is appropriate ‘where most, if not all, of the evidence admitted at trial would have been admissible in each trial if the several defendants had been tried separately.’ Stevenson v. State, 43 Md.App. 120, 130 , 403 A.2d 812 , affd, 287 Md. 504 , 413 A.2d 1340 (1979).... Here, there was no prejudice to either appellant in the refusal to sever their trials on the charges lodged against them jointly. Any evidence that was admissible against either appellant on those charges would be admissible against both.” (emphasis in original). See also McKnight v. State, 280 Md. 604 , 375 A.2d 551, 554 (1977); Stevenson v. State, 43 Md.App. 120, 130 , 403 A.2d 812 (1979), affd, Stevenson v. State, 287 Md. 504 , 413 A.2d 1340 (1980); Johnson v. State, 38 Md.App. 306, 310-311 , 381 A.2d 303 (1977); McCree v. State, 33 Md.App. 82, 92-93 , 363 A.2d 647 (1976); Mason v. State, 18 Md.App. 130, 141 , 305 A.2d 492 (1973); Peterson v. State, 15 Md.App. 478, 496 , 292 A.2d 714 (1972); cf. Tracy v. State, 319 Md. 452, 458 , 573 A.2d 38 (1990).

This possibility of significant damage to a defendant by evidence inadmissible as to him but admissible against a codefendant is the only criterion for measuring joinder/severance ever recognized by Maryland law. Unless damaging evidence is not mutually admissible, a trial severance is, ⁷⁴ indeed, contraindicated. As we stated in Ball v. State, 57 Md.App. 338, 353 , 470 A.2d 361 (1984) (emphasis supplied), “A severance is called for only when a defendant will be significantly prejudiced by evidence admissible against a codefendant but not admissible against him.” According to this exclusive criterion, the appellants did not remotely qualify for a trial severance. Not simply most (which would be enough) but, indeed, all of the evidence was mutually admissible against both Tyler and Eiland.

We would have no difficulty affirming Judge Johnson’s decision to deny severance even by the more rigorous “right or wrong” standard of review. A fortiori, his decision cannot fail to be affirmed by the far more deferential “clear abuse of discretion” standard. Accordingly, we affirm. Resiliently, however, the appellants continue to squirm even when they are clearly down.

Out of thin air, they attempt to confect an additional criterion for measuring joinder/severance — “hostility between the defenses.” Ingeniously, they have combed the case law and uncovered four instances where, in passing dicta, the phrase “hostile defenses” has actually been uttered. 3 Those passing utter ⁷⁵ anees, however, had been in the context of mutually inadmissible and damaging evidence actually introduced. In context, of course, the phrase did not articulate some new and different test but simply described long settled Maryland law. What the appellants are attempting to do is to treat the adjective “hostile” as a free-floating phenomenon — to remove it from the context of mutually hostile actual evidence and then to build around it, as it floats free, a new context consisting of mutually hostile jury arguments, mutually hostile insinuations, and mutually hostile tones on cross-examination. Of the four opinions relied upon by the appellants as ostensible authority for the very existence of an additional joinder/severance criterion simply because of their inconsequential inclusion of the phrase “hostile defenses,” it must be pointed out that in three of them the denial of a severance was summarily affirmed as non-error.

Jones v. State, 185 Md. 481, 487 , 45 A.2d 350 (1946); Williams v. State, 226 Md. 614, 621 , 174 A.2d 719 (1961); Laws and Dorman v. State, 6 Md.App. 243, 248 , 251 A.2d 237 (1969). In the fourth, Day v. State, 196 Md. 384 , 76 A.2d 729 (1950), the decision that severance had been erroneously denied turned upon the fact that inadmissible hearsay (confessions of a codefendant) was admitted into evidence to the extreme prejudice of both defendants. Laws and Dorman , moreover, makes it very clear that when Day v. State used the notion of hostile defenses, it was referring to nothing beyond the actual introduction of ⁷⁶ inadmissible and prejudicial evidence. In distinguishing Day v. State, it held that the appellants in its case could not avail themselves of a severance argument for the sole reason that they had not presented any evidence: “The appellants rely on Day v. State ... where the Court of Appeals found abuse of discretion where the codefendants had defenses hostile to each other in that each tended to blame the other for the killing during a felony.

Since neither Laws nor Dorman presented any evidence at the conclusion of the State’s case it is apparent that Day v. State, supra, has no application here.” (emphasis supplied). 6 Md.App. at 248 , 251 A.2d 237 . In Sye v. State, 55 Md.App. 356 , 468 A.2d 641 (1983), one of the appellants made the very argument made by the appellants here — that severance was necessary “because his version of the altercation that led to the killing differed from the versions given by his codefendants.” 55 Md.App. at 361 , 468 A.2d 641 . We rejected the argument, observing at 55 Md.App. 362 , 468 A.2d 641 : “Where the codefendant who gives the damaging version actually takes the stand and testifies ... there is no problem. The testimony, though damaging to be sure, is competent and, therefore, admissible.

Prejudice as a term of art means damage from inadmissible evidence, not damage from admissible evidence.” (footnote omitted). The mere fact that a joint trial may place a defendant in an uncomfortable or difficult tactical situation does not compel a severance. Only the threat of damaging inadmissible evidence does that: “The pertinent question is not whether the State might have had, in some other procedural configuration, a more difficult time in obtaining the testimony of Brooks and Sye. The pertinent question rather is whether the testimony of Brooks and Sye was competent and admissible.

It clearly was. Bates was damaged but the damage was legitimate. He received a fair trial with the State using ⁷⁷ only admissible evidence. The State did not offer any evidence admissible against the others but inadmissible against Bates.” 55 Md.App. at 363 , 468 A.2d 641 .

The same argument was also before us on yet an earlier occasion. We rejected it, speaking through then Chief Judge Murphy, in Lipscomb v. State, 5 Md.App. 500 , 248 A.2d 491 (1968). In a joint trial of two codefendants for rape, one claimed that the sexual intercourse was completely consensual. He was understandably chagrined by his codefendant’s starkly contrasting testimony that the victim had struggled and the codefendant had been enlisted to help hold her down.

Lipscomb claimed that the testimony of the codefendant was prejudicial. We pointed out that prejudice consists not of being damaged or incriminated by the evidence but only of being damaged or incriminated by evidence that is inadmissible. Our decision in Moore v. State, 84 Md.App. 165 , 578 A.2d 304 (1990) is dispositive. Two codefendants, joined for trial over their objections, claimed that “their defenses were incompatible (i.e., each defendant attempted to prove at trial that the other was solely responsible) and, therefore, prejudicial.” 84 Md. at 169.

In rejecting the argument, Chief Judge Gilbert held for the Court: “Each appellant contends that he was prejudiced by the joinder because each had defenses hostile to the other. The case law in Maryland, however, does not sweep as broadly as appellants think it does. A defendant is deemed to have been prejudiced by a joint trial when the joining of a co-defendant or co-defendants (1) permits the State to introduce, against a particular defendant, otherwise inadmissible evidence, and (2) that otherwise inadmissible evidence tends to contradict the defendant’s theory of the case. The permitted joinder in both Day and Erman allowed the State to introduce evidence against one defendant that could not have been introduced against him had he been tried separately.

Moreover, the evidence which was ⁷⁸ otherwise inadmissible contradicted the defendant’s evidence, thereby prejudicing him. The joinder in the case at bar did not produce that result. The evidence admitted at trial would have been admissible against each co-defendant, irrespective of whether they received separate trials____” (emphasis supplied). 84 Md.App. at 169, 578 A.2d 304 . Judge Johnson did not abuse his discretion in denying the severance.

Tyler argued, incidentally, that because of the joint trial, “the jury was so confused that it returned a verdict which was inconsistent externally as between the defendants---- While Tyler was found guilty of first-degree premeditated murder, Eiland was found to have aided and abetted in a second-degree specific intent murder____ Thus, even though Tyler has been found guilty of first-degree premeditated, the jury found Eiland guilty only of aiding and abetting a second-degree murder.” What was in the second degree, of course, was not a “murder” (an act of homicide itself has no level of moral blameworthiness) but rather Eiland’s “aiding and abetting” of it. Eiland’s level of guilt and Tyler’s level of guilt were totally independent of each other Cf. State v. Raines, 326 Md. 582 , 606 A.2d 265 (1992). There was nothing incongruous in Eiland’s being guilty of murder in the second degree as an aider and abettor to Tyler’s, the triggerman’s, murder in the first degree.

When a single crime has different levels of blameworthiness dependent upon the level of moral depravity of the perpetrator, all participants, at whatever level, share in a single and immutable actus reus; their individual mind sets or mentes reae, however, may rise or fall quite independently of each other. Thus, the triggerman may have premeditated the killing (first degree); one aider and abettor may have formed the intent to kill only at the last moment or, indeed, have intended only grievous bodily harm (second degree); while a second aider and abettor, a cue ⁷⁹ kolded spouse perhaps, may have been acting in hot-blooded response to provocation (manslaughter). As we move from triggerman to accomplice, moreover, the levels of blameworthiness may be ascending as well as descending. Among mutual participants, the only expected common denominator is the actus reus.

Their intents may be randomly idiosyncratic. The Dying Words: An Implied Assertion of a Deteriorating Condition Immediately after the shooting, Campbell raced the Toyota toward the Leland Memorial Hospital. The trip took “no more than three minutes.” By the time the car reached the hospital, however, Jay Bias could no longer respond verbally. “He had like foam coming out of his mouth.” Both Campbell and Mathis described Bias’s utterances in the course of that three-minute ride. Mathis had been hit in the face by flying glass and dropped to the floor of the back seat, thinking he himself might have been shot.

When asked “What happened next?,” he replied: “At that point Jay started replying that he had got shot. He asked Tydus to take both of us to the hospital, ‘Get us to the hospital. Get us to the hospital.’ And then he started saying that he’s not going to make it. ‘We ain’t going to make it.’ And then he said he loved his mother and his father, and then he said the Lord’s Prayer.” Campbell described Bias’s first words after the shooting: “At the time he was saying, ‘Take me to the hospital. Take me to the hospital.’ ” He went on to testify that by the time they got to East-West Highway, the tone of Bias’s statements had changed dramatically: “He had stated to me at that time, he said, ‘Just tell my mother and father and my sister and brother and Shelley that I love them,’ and I said, ‘Jay, don’t talk like that.

Don’t you die on me. Hang in there. We’re going to be ⁸⁰ at the hospital in a few minutes.’ And then he started reciting the Lord’s Prayer, and from there I just stepped on the gas because I felt like he knew.’’ Both appellants objected to the accounts of Bias’s last words on the grounds that they were inadmissible hearsay, were irrelevant and were inflammatory. Several questions are involved.

Were those out-of-court utterances hearsay at all? Were the utterances actually assertions of anything? If so, what were those assertions offered to prove? Were they relevant to prove it?

Were there sufficient guarantees of trustworthiness to support the declarant’s credibility? To begin with credibility, there were redundantly overlapping guarantees of trustworthiness. One can in this case readily understand the nostalgic tug of the now discredited and much maligned term “res gestae.” Cassidy v. State, 74 Md.App. 1, 9-16 , 536 A.2d 666 (1988). More sophisticated modern analysis, of course, has unravelled that previously undifferentiated umbrella concept into between seven and ten separate evidentiary rules.

Cassidy, 74 Md.App. at 12-14 , 536 A.2d 666 . The dying words of Bias would qualify as trustworthy under as many as four of those now autonomous exceptions, none of them ironically being the dying declaration. The declarations, made while racing to the hospital within a minute or two of being mortally wounded and while in the grips of both physical pain and despair of impending death, are a textbook example of every type of excitement that could ever inhere in an excited utterance. L. McLain, Maryland Evidence § 803(2).l, at 349-352 (1987 & Supp.1990); Cassidy v. State, 74 Md.App. at 16-23 , 536 A.2d 666 .

Beginning with “I’ve been shot” through “We’re not going to make it,” the declarations are also quintessential present sense impressions. Booth v. State, 306 Md. 313 , 508 A.2d 976 (1986); State v. Jones, 311 Md. 23 , 532 A.2d 169 (1987); L. McLain, Maryland Evidence § 803(1).1, at 343-346. The assertions, express and implied, are, more ⁸¹ over, classic illustrations of a statement of present bodily condition, sometimes referred to as a statement of pain and suffering. L. McLain, Maryland Evidence § 803(3).2, at 363-364; Cassidy v. State, 74 Md.App. at 23-25 , 536 A.2d 666 ; Geiselman v. Schmidt, 106 Md. 580, 584 , 68 A. 202, 204 (1907); Pennsylvania R.R. v. Simmons, 159 Md. 114, 121 , 150 A. 263, 265-266 (1930).

As expressions of an awareness of immediately impending death, the utterances are also statements of a present mental or emotional state. L. McLain, Maryland Evidence § 803(3).l, at 356-363; Nash v. State, 69 Md.App. 681, 690-691 , 519 A.2d 769, 773 (1987). The credibility or trustworthiness hurdle is cleared with room to spare in four separate ways. Quite aside from credibility, however, were the utterances actually hearsay?

Even to be characterized as hearsay, of course, the statements must be assertive and must, furthermore, be offered to prove the truth of the thing asserted. The dying words of Jay Bias certainly were not direct assertions within the contemplation of the hearsay rule. “I’ve been shot” and “Tell my mother and father that I love them,” though assertions in a sense, were not here offered for the truth of the things directly asserted. The fact that Bias had been shot was not in dispute and his love for his parents was not in issue. The Lord’s Prayer, moreover, is not assertive at all but is, rather, a series of exaltations of praise and appeals to divine grace.

Those utterances nonetheless qualify as hearsay as instances of the far less frequently observed evidentiary phenomenon of the implied assertion. L. McLain, Maryland Evidence § 801.4, at 275: “At common law, out-of-court ‘statements’ within the hearsay definition also include implied assertions. When evidence of either verbal or nonverbal conduct is offered to prove that the declarant or actor had a particular belief and that that belief was correct, the hearsay rule will apply.” (footnote omitted). ⁸² See also Wright v. Tatham, 7 Adolph & 313, 112 Eng.Rep. 488 (Exch.Ch.1837) and 5 Cl. & F. 136 (H.L.1838). And see Waters v. Waters, 35 Md. 531, 544-45 (1872) (expressly adopting the holding of Wright v. Tatham as part of Maryland law).

The implied assertion may be verbal or non-verbal. The sea captain’s taking on board of his wife and children is an implied assertion of his belief in his vessel’s seaworthiness. See L. McLain, Maryland Evidence § 801.4, at 275. The raising of an umbrella is an implied assertion that it is raining.

See Falknor, The “Hear-Say” Rule as a “See-Do” Rule: Evidence of Conduct, 33 Rocky Mountain L.Rev. 133 (1961). By parity of reasoning, a last wish to a companion to pass on one’s final expression of love to a mother and a father and then the reciting of the Lord’s Prayer are implied assertions of the fact “I’m dying,” particularly when they closely follow an earlier and more optimistic “Get me to the hospital” countered shortly by the growing apprehension “We’re not going to make it.” Even credible hearsay, however, must also be relevant. What relevance, finally, had Jay Bias’s implied assertion, tragically quite accurate, that he was dying. Though not medically expert, to be sure, Jay Bias’s direct observations of his own condition — his pain, his sense of where the bullets hit, his sinking feeling, his waning consciousness— were, albeit non-expert, some relevant evidence of that condition.

In terms of materiality, that condition was placed squarely in issue by the appellant Tyler. At a pretrial motions hearing on April 11, 1991, Tyler requested a continuance in order to pursue his intended “intervention defense.” The thrust of that defense was clear. As Tyler’s counsel explained it: “We have taken the medical records from the hospital dealing with the treatment of Mr. Bias, we have taken the autopsy report, and we have presented them to a distin ⁸³ guished forensic pathologist, and he has given me the following opinion: - He has basically stated that when Mr. Bias was taken to the hospital, he was a wounded man who could have and should have survived, and it was not the bullet that killed Mr. Bias, it was the medical treatment that he received at Leland Memorial Hospital that killed him, that took his life. There is in the law, with respect to homicide prosecutions, a defense known as, “Intervention,” and if we can establish and convince the trier of fact that Mr. Bias was a wounded man who could have and should have survived, but that because of the treatment he received at the hospital, and as a result of the treatment he received at the hospital, he didn’t survive, that would be a valid and bona fide defense of this case.” (emphasis supplied).

At another hearing just prior to the start of the trial, the issue arose of whether Tyler would be permitted to allude to his intervention defense in his opening statement to the jury. Three times Tyler’s counsel was pressed as to whether he intended to raise the intervention defense. Twice he avoided the question. The third time, he equivocated: “THE COURT: Mr. Houlon, I’m not going to get into an argument with you.

My question is do you intend to raise that issue? MR. HOULON: I don’t know if I’m going