Elmer v. State

THIEME, Judge. Appellant David Allen Elmer and co-defendant Robert Keith Brown were tried before a jury, presided over by Judge Edward D.E. Rollins, Jr., in the Circuit Court for Cecil County on ten charges stemming from a single shotgun blast fired from a car in which appellant was the passenger and Brown was the driver. Motions for judgments of acquittal were granted with respect to five of the charges at the close of the State’s case, and the jury returned guilty verdicts on the remaining five charges. 1 The judge granted appellant’s motion for a new trial with respect to the charge of shooting -with the intent to maim and then sentenced him on the four remaining convictions: malicious injury to an eye (fifteen years, ten of them suspended), assault (ten years concurrent and suspended), reckless endangerment (five years concurrent and suspended), and conspiracy to shoot with intent to disable (ten years concurrent and suspended). His appeal presents the following issues: I. Whether the Court erred in allowing cross-examination of the co-defendant based on the plea negotiation proffer of his counsel. ²⁰⁹ II.

Whether the evidence was insufficient to convict appellant. For reasons to be set forth, we affirm. The offending shotgun blast was the climax of an escalating altercation that took place on 1 February 1996. According to the testimony elicited at trial, appellant was the only passenger in a car driven by co-defendant Brown through the Winding Brook area of Cecil County.

At one point, the car swerved somewhat close to a group of four persons. Those four then walked to a nearby basketball court and informed others of the swerving incident. The car carrying appellant and Brown soon approached the basketball court, and several of those present started throwing rocks at the car. Many of the rocks were quite large.

The car again swerved toward some of the participants and then quickly departed. Evidence conflicted on whether appellant and Brown left the residential development and then returned or whether they were prevented from exiting by another car blocking the road. In any event, their car returned a third time, and several of the pedestrians were brandishing more rocks. A shotgun barrel emerged from the passenger window and discharged.

The shot struck only one victim, a man who, by all accounts, was not theretofore involved in the incident. Three pellets struck him in his head, two more in his nose, and one in his left eye. The victim suffered irreparable damage to his eye and now wears a replacement prosthesis. A major evidentiary conflict concerned whether the codefendantydriver or appellant/passenger pulled the trigger.

Many witnesses testified that the shotgun barrel emerged from the passenger side, and several of these witnesses testified that appellant was the one who fired the shot. A police detective testified that he found nine shotgun shells on appellant’s person at the time of his arrest and that the shotgun was found in the shed of appellant’s third cousin. There was other evidence, however, that appellant had an injured hand at the time, and two witnesses testified to having seen co-defendant Brown with a gun in his hand. Another detective placed into evidence a statement made by appellant during a ²¹⁰ police interview in which he stated that he was not “the shooter.” t Appellant himself did not take the stand.

Brown did take the stand, however, and he confessed to firing the shot. He said that appellant had indeed pointed the barrel of the gun out of the window to scare the “attackers,” but that appellant had dropped the gun when one of the rocks struck the car near him. Brown then-admitted that he grabbed the gun, aimed it high in the air, and fired it out the passenger window. On cross-examination of Brown, the following exchange occurred: Q. Mr. Brown, did you ever make the statement that when you came down around the curve ... your attention was drawn to the people that were running from your left, and that at that point in time Allen Elmer put that gun out the window, pulled the trigger, the gun boomed, and the first thing you said to him is what the F did you do?

Did you ever make that statement? MR. SMIGEL [counsel for co-defendant Brown]: Objection. May we approach the bench THE COURT: What is your objection?

MR. SMIGEL: I am trying to make sure that [the prosecutor] is not trying to get into attorney/client privilege. The attorney who he was making the statement to— clarify that please. THE COURT: Well, if he made it to you, how would he know about it?

If he made it to you, how would [the prosecutor] know about it? MR. STERN [counsel for appellant]: I object. Objection.

MR. SMIGEL: My objection is I want him to clarify who he made the statement to. MR. PARRACK [prosecutor]: All I have to ask him is if he ever made the statement.

THE COURT: You’re overruled. ²¹¹ The prosecutor then began to repeat the question substantially verbatim, and Brown’s counsel interrupted with another objection. The court permitted a second sidebar. MR. SMIGEL: Your Honor, Mr. Parrack asked on settlement negotiations what would my client testify to, and during settlement negotiations I told him what my client would testify to.

I never told him my client said that. That was part of the settlement negotiations for— MR. STERN: In all fairness, good conscience, fairness, he can’t use something like that now when negotiations— THE COURT: Is this what you are using now? MR.

PARRACK: Yes, I am. Let me tell you how this went through. This is — Mr. Smigel came to me, and said his client was willing to plead guilty to reckless endangerment, and his client wanted to testify in my prosecution of this defendant; and his client would testify just exactly the same that I am asking right now. MR.

SMIGEL: No. What I said — he asked, what do you expect your client to say. I said, I would expect my client to testify— MR. PARRACK: And he continually said that’s what the witness had said. MR.

SMIGEL: I never intentionally asked my client what he did or not what he did until ten minutes before yesterday. THE COURT: What you— MR. SMIGEL: He asked what I expect him to testify to. I never— THE COURT: You are overruled.

You have your objection. Thereupon, the prosecutor asked the question a third time, this time beginning, “Mr. Brown, you made the statement, didn’t you ...” The rest of the question was substantially identical, but it concluded with the added detail “and Mr. Elmer said to you, T shot the car.’ Didn’t you make that statement?” Brown finally answered the question: ²¹² A. No, I did not make that statement. That was how it was stated in newspapers and stuff; and at that time no one had given me a chance to tell my side of the story, what happened down there that day. I was never given a chance to explain what happened or anything like that.

And in my charging documents that was what had been said. So that is what I had went along with to try to get those charges filed against the attackers who admitted to attacking, which you have let go; and that’s so they can get away with attacking people. That’s — I mean, I know it is a terrible shame that somebody got hurt in this incident. That could have easily been me and Allen on that stretcher flying to shock trauma.

Does that give them the right to attack us? Q. Mr. Brown, didn’t you say that you would testify to just that in the prosecution of Mr. Elmer? A. No, I did not. That was never said, no.

I never said I was going to testify. I am saying that now here. I am right now setting here finally — finally after a year and six months in jail, free of all this terror and nervousness and pain and everything that me and my family has had to suffer. I’m here now finally getting to tell the truth, and what really happened in this case.

Q. Did you ever communicate to me that you were going to testify, or you’d be willing to testify in the prosecution of Mr. Elmer? MR. STERN: Objection. MR.

SMIGEL: Objection. THE COURT: Sustained. Mr. Stern then approached the bench to renew his objection to the prosecutor’s questioning on the basis of statements made in Brown’s plea negotiations. The court assured Mr. Stern, “You got [your objection] for the record the first time.

You have it on the record, gentlemen.” ²¹³ Rule 5-410(a)(4) Appellant first argues that the court committed reversible error by allowing the prosecutor to cross-examine Brown on statements made in the course of plea negotiations, in violation of Maryland Rule 5-410(a)(4). The appellant asserts he was improperly prejudiced by the aspersions cast on the only eyewitness who testified that appellant was not the shooter, potentially leading the jury to find that appellant was the shooter. Appellant further argues that the public policy favoring the exclusion of statements made in plea negotiations warrants reversal. The State responds (1) that Rule 5-410 is of no avail because no evidence of any such statement was ever introduced and (2) that the negative response given to the question renders harmless any possible error in asking it.

Maryland Rule 5-410(a) provides: Except as otherwise provided in this Rule, evidence of the following is not admissible against the defendant who made the plea or was a participant in the plea discussions: (4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or nolo contendere or which result in a plea of guilty or nolo contendere which was not accepted or was later withdrawn or vacated. This rule was derived from Federal Rule of Evidence 410 and adopted by the Court of Appeals in 1993. Years prior to the adoption of the rule, the Court of Appeals expressed its agreement with the principle that statements made in the course of unsuccessful plea bargaining should not be introduced against a defendant at a later trial. Wright v. State, 307 Md. 552 , 515 A.2d 1157 (1986).

The Wright Court reasoned that such a rule would (1) facilitate the policy of encouraging plea bargaining and (2) effectuate the defendant’s right subsequently to withdraw a guilty plea. 307 Md. at 586-87 , 515 A.2d 1157 . 2 ²¹⁴ Rule 5-410(a)(4) affords appellant no relief because, as the State has correctly pointed out, the rule only bars the introduction of evidence and no evidence was introduced in the instant case regarding any plea bargaining statement. The prosecutor merely asked whether an inconsistent statement had been made, and Brown responded with a firm denial. No attempt was made to prove the hypothetical statement. The judge, therefore, did not commit error with regard to appellant under Rule 5-410 by allowing the question of Brown.

Appellant also asks us to reverse out of concern for the public policies behind the inadmissibility of statements made in plea negotiations, because the prosecutor was obviously cross-examining Brown based on information the prosecutor learned during Brown’s plea negotiations. Appellant’s argument for extending the effect of the rale calls upon this Court to reach two separate conclusions: (1) that it violated the policies of Rule 5-410(a)(4) for the prosecutor to use the statement made in plea discussions as the basis for cross-examination on a prior inconsistent statement, and (2) that it furthers these policies to extend the protection of the rule to appellant, who was not a party to the negotiations at issue. In considering these two requested extensions, we notice that we do not have the benefit of a single reported Maryland case interpreting the scope of Rule 5-410, nor one delineating the extent of the specific policies first identified in Wright. 3 We ascribe this lack of precedent to the relative clarity and simplicity of the rule, as well as to the high integrity of the ²¹⁵ prosecutorial bar in general. The Reporter’s Note to Rule 5-410 does not provide us with any guidance with regard to appellant’s argument either.

At this juncture we decline appellant’s first invitation to hold that the prosecutor’s question violated the spirit of the rule. First, we note that it is still an open question whether Maryland’s Rule 5-410 bars the State from introducing actual evidence of a prior statement made during plea negotiations once the defendant has taken the stand and testified in an inconsistent manner, although we are aware that the analogous federal rule has been so construed, 4 and the structure of the Maryland rule supports such a reading. 5 Appellant would have us decide against admission in such cases (even though his case raises no such issues), and then resolve the further question of whether the State may merely inquire into such a statement even without introducing evidence. This would be somewhat of a judicial stretch. Second, we are not entirely convinced that Rule 5-410 is even applicable to the instant statement because the rule on its face only applies to statements used against the declarant/defendant.

Here, although