Ford v. State

Watts, J. This case concerns two issues involving the admissibility of evidence in a murder trial. First, we consider admissibility of character evidence of the victim under Maryland Rule 5-404(a)(2)(C), which provides: "In a homicide case, the prosecutor may offer evidence of the alleged victim's trait of peacefulness to rebut evidence that the victim was the first aggressor." Here, the trial court, over defense counsel's objections, permitted the State, Respondent, to present evidence of the alleged victim's trait of peacefulness in its case-in-chief during direct-examination of two State's witnesses to rebut remarks made by defense counsel in opening statement that the defendant was not the aggressor and had acted in self-defense. The second issue concerns the admissibility of evidence of the defendant's post-crime conduct as consciousness of guilt, and specifically, the determination that such evidence was relevant and that the danger of unfair prejudice or considerations of cumulativeness did not substantially outweigh the probative value of the evidence. Here, evidence was adduced at trial that, after stabbing the victim, the defendant fled to his ex-girlfriend's home.

Over objection, the trial court permitted the State to elicit testimony from the defendant's ex-girlfriend that, the morning following commission of the crime, she asked him to leave, and the defendant cursed at her, slammed the front door, and left. The trial court admitted evidence of the defendant's reaction to being told that he had to leave his ex-girlfriend's home as evidence of consciousness of guilt. As to the first issue, we hold that Maryland Rule 5-404(a)(2)(C) does not permit a prosecutor to offer evidence of an alleged victim's trait of peacefulness to rebut statements made by defense counsel in opening statement because opening statements are not evidence, and Maryland Rule 5-404(a)(2)(C) specifically requires that " evidence that the victim was the first aggressor" be introduced before the prosecutor may rebut such evidence with "evidence of the alleged victim's trait of peacefulness[.]" (Emphasis added). Moreover, we hold that defense counsel's remarks during opening statement did not "open the door" for the prosecutor to present evidence of the alleged victim's trait of peacefulness.

This is so because, even if defense counsel's remarks placed the victim's actions and character at issue and somehow indicated that the defendant would perhaps offer evidence to prove that the victim was the aggressor, Maryland Rule 5-404(a)(2)(C) definitively requires evidence that the victim was the first aggressor-not merely a statement indicating that some evidence might possibly be introduced-to trigger the State's ability to rebut with evidence of the victim's trait of peacefulness. Accordingly, the trial court erred in concluding that defense counsel had "opened the door" for the State to present evidence of the victim's trait of peacefulness under Maryland Rule 5-404(a)(2)(C), and in permitting the State, over objection, to elicit testimony in its case-in-chief from State's witnesses that the victim was a "quiet, nice person[, n]ice to everybody[,]" and "a cool person[, h]e was never, you know nasty or hostile, or anything." Nevertheless, we hold that the error was harmless beyond a reasonable doubt. As to the second issue, we hold that the trial court properly permitted the defendant's ex-girlfriend to testify about the defendant's behavior and reaction to being told that he had to leave her home-specifically, that he "cursed [her] out, and he slammed back the front door and left"-as evidence of consciousness of guilt. We conclude that the trial court did not err in determining that this evidence of the defendant's post-crime conduct was relevant to the defendant's guilty state of mind-specifically, that he was staying at his ex-girlfriend's home to hide from law enforcement and did not want to leave because he wanted to continue hiding out and elude capture.

Additionally, we conclude that the trial court did not abuse its discretion in concluding that the danger of unfair prejudice or considerations of cumulative evidence did not substantially outweigh the probative value of the evidence. BACKGROUND On August 7, 2015, in the Circuit Court for Anne Arundel County, a grand jury indicted David Leander Ford, Petitioner, for first-degree premeditated murder, second-degree murder, manslaughter, and carrying a weapon openly with the intent to injure. The charges arose out of an incident that occurred on the evening of July 8, 2015, during which Ford allegedly engaged in an altercation with Mohamed Bashir Eltahir and fatally stabbed him. From September 19 to 22, 2016, the circuit court conducted a jury trial.

At the start of trial, the prosecutor nol prossed the charge of first-degree premeditated murder. Also, at the start of trial, Ford's counsel moved in limine to exclude evidence that Ford had a "temper." The prosecutor requested that the circuit court reserve ruling on the matter to "see how the trial plays out before [ ] mak[ing] an ultimate ruling on whether that evidence becomes relevant[.]" The circuit court agreed with the prosecutor and stated that it would "reserve on the issue of [Ford] ha[ving] a temper." During the State's opening remarks, the prosecutor set forth the State's theory of the case, positing that Ford instigated a verbal argument with Eltahir, and was responsible both for escalating the argument to a physical altercation and for subsequently introducing a knife into the physical altercation. Specifically, the prosecutor stated as follows. On the evening of July 8, 2015, Eltahir and his friend, Everett Kane, purchased alcoholic beverages, and took the drinks and sat on a park bench together.

According to the prosecutor, Eltahir was "relaxed" and "enjoying himself." Others joined the two men, including Ford, who "made a crude comment about" a woman walking by, equating her to Eltahir's sister. Eltahir asked Ford to stop. Ford declined to stop and instead escalated the verbal exchange by jumping off the park bench, continuing to swear, and "get[ting] into [Eltahir]'s face." In response, Eltahir stood and "argued right back." Others tried to defuse the situation, but the two men continued to argue until Ford swung his fist and struck Eltahir in the chest. According to the prosecutor, Ford "was the first one to make th[e] argument physical." Ford kept hitting Eltahir, but Eltahir "finally got a hit in too, and he knocked [Ford] down to the ground." When Ford stood up, others saw him stab Eltahir in the chest with a knife.

According to the prosecutor, the "knife went straight into [Eltahir]'s chest, and into his heart[,]" and he died shortly thereafter. Ford fled the scene, eventually going to the home of Sheila Brown, his ex-girlfriend, whom he told that he had "cut a boy." Ford's theory of the case was that he acted in self-defense. During Ford's opening statement, his counsel posited that, although Ford insulted Eltahir, Eltahir was younger, bigger, faster, and stronger than Ford, and Eltahir was the aggressor who initiated physical contact. Specifically, Ford's counsel stated: He had a choice to defend himself or he had a choice to get badly injured, perhaps even killed.

What [ ] Ford chose to do that night was to defend himself.... [Eltahir] is a security guard, he was drinking that night. [Yo]u are going to hear evidence that [Eltahir] is younger than [ ] Ford, faster than [ ] Ford, bigger than [ ] Ford, and stronger than [ ] Ford. And [ ] Ford is not the person [who] initiates any physical contact, that's [Eltahir]. So [ ] Ford finds himself being attacked by someone that's larger, someone that's stronger, someone that's faster, and someone that's bigger. And [ ] Ford makes a choice to defend himself. [ ] Ford is forced to react.

The only goal that [ ] Ford had that day was to defend himself, and to make sure that he didn't get hurt. * * * [Eltahir]'s death is certainly tragic, but it is not at all intentional. So I ask you to listen to all the evidence that's presented before you make a decision and you'll realize that [ ] Ford was in a situation where he was overmatched. He was in a situation where he was reacting out of fear, and that he certainly wasn't the aggressor. He made an offhand verbal comment but he was not the physical aggressor.

And most importantly he had a reasonable belief that he was in [im]minent danger. And he had that belief because he was. He was in [im]minent danger. He was forced to react and he had absolutely no intent to kill him.

At the close of opening remarks, the prosecutor requested a brief bench conference. At the bench conference, the prosecutor argued that Ford's counsel's assertion that Eltahir was the aggressor "opened the door" for the State to introduce evidence "about whether [Ford] has a temper or not," and "general evidence about" Ford's character for peacefulness or aggressiveness. According to the prosecutor, Eltahir's "nature for peacefulness [was] fair game at th[at] point, and because [the defense was] claiming self-defense, [Ford]'s nature bec[a]me[ ] fair game." Ford's counsel objected. After hearing argument from the parties, at this point, the circuit court ruled that Ford's counsel's statements during opening remarks had not opened the door "sufficiently" for the State "to use it in [its] case[-]in[-]chief." As the first witness for the State, Barbara McQueen testified that she knew Eltahir for approximately six months and that she saw him "[a]lmost every day." The following exchange occurred concerning McQueen's knowledge of Eltahir: [PROSECUTOR:] Okay, and how about his demeanor, his personality? [MCQUEEN:] Quiet, just overall a nice person. [PROSECUTOR:] Okay.

Did you have occasion to observe his peacefulness? [MCQUEEN:] Yes. [FORD'S COUNSEL]: Objection. THE COURT: Rephrase counsel. [PROSECUTOR]: Okay. [PROSECUTOR:] Did you have occasion to observe his nature with regards -- his, his nature I guess. [FORD'S COUNSEL]: Objection. THE COURT: Overruled. [PROSECUTOR:] Were you able to observe his demeanor and nature? [MCQUEEN:] Was quiet, nice person. Nice to everybody. [PROSECUTOR:] Did you see, observe whether he would get angry easily, or if it would take a lot to get him angry? [FORD'S COUNSEL]: Objection.

THE COURT: Rephrase Counsel, sustained. [PROSECUTOR:] Did you have [the] ability to observe his character towards peacefulness or aggressiveness? [FORD'S COUNSEL]: Same objection. THE COURT: Sustained, rephrase Counsel. [PROSECUTOR:] In your contact, did you ever have [the] opportunity -- okay. Did you -- were you able -- aware of his reputation for peacefulness or aggression[?] [FORD'S COUNSEL]: Objection. THE COURT: Overruled. [PROSECUTOR:] Were you aware of his reputation for peacefulness or aggressi[on]? [MCQUEEN:] Yes. [PROSECUTOR:] And what was that reputation? [MCQUEEN:] We would sit on the bench and talk, and we went to restaurants and ate with him.

McQueen testified that, on the evening of July 8, 2015, she and her friend Katherine Platter went to the park near her apartment complex, where Eltahir and Kane were sitting on a park bench drinking. Eltahir was not drunk or slurring his speech, and was acting "[q]uiet and nice as usual." At some point, Ford arrived carrying "two or three [shopping] bags[,]" which he put down at the end of the walkway before he sat on the park bench with Eltahir and Kane. McQueen testified that two women walked by, and described how an argument began between Ford and Eltahir: [Ford] said, "Man I want to (expletive) your sister, he say, I wrap her hair around her head, and I want to (expletive) your sister". And [Eltahir] said, "Man what are you talking about".

And [Ford] leaned over and said, "What, you don't understand what the (expletive) I'm saying?" He said, "I said I want to (expletive) your sister". So then, that's how the argument started. McQueen testified that, following this verbal exchange, Ford stood up and "got in [Eltahir]'s face." Eltahir also stood up, and Platter "jumped up, and [ ] got in between [Ford] and [Eltahir], and started pushing them apart." Ford hit Eltahir, who stumbled back; according to McQueen, Ford hitting Eltahir was the first physical contact made during the altercation. Eltahir then hit Ford, who "fell back on his knees." Ford got back up and hit Eltahir in the chest.

McQueen saw Ford hit Eltahir "about four times" and saw Eltahir hit Ford only once. After Ford hit Eltahir in the chest, Platter told Eltahir to sit down, and as Eltahir began to sit, he told Ford: "Since you say (expletive) my sister, (expletive) your mother[.]" Ford started "hitting" Eltahir again, and when Eltahir sat down, McQueen saw blood. Ford told Kane to grab his grocery bags, and then both men ran. As Ford passed by McQueen, "[h]e had [a] knife in his hand, and he had blood running down his arm." Subsequently, McQueen telephoned 911.

Law enforcement officers responded to the 911 call and McQueen was interviewed by detectives. Detectives showed McQueen a photographic array, and she identified Ford as the person who stabbed Eltahir. McQueen acknowledged telling detectives that she was "about fifty percent sure[,]" but testified that there was no doubt in her mind that Ford stabbed Eltahir, and she identified Ford in the courtroom. On cross-examination, McQueen acknowledged telling law enforcement officers the following in an interview: "And then after that, I basically really couldn't see too much, because [Platter] was, big as she is, was standing up there, and then when she turned around, that's when we saw all the blood[.]" Later on cross-examination, though, McQueen testified that she "did see" Ford stab Eltahir.

Ford's counsel also asked McQueen to describe Eltahir's reaction to Ford's comment that he wanted to "(expletive) [Eltahir's] sister[,]" and McQueen acknowledged that Eltahir did not react well, but denied that Eltahir became "visibly angry[.]" On redirect, McQueen testified that there was no blood on Eltahir's shirt when he arrived at the park bench, and that Ford was the only person to make physical contact with Eltahir's chest. As a witness for the State, Kane testified that, as of July 2015, he had known Eltahir for approximately six months, and they were "close friends." The prosecutor asked Kane to describe Eltahir, and Kane testified: "He was a, you know, quiet, you know, quiet person. You know, we always sat and talked.... And he was never, you know, hostile or anything." Ford's counsel objected, and the circuit court sustained the objection.

The prosecutor asked to approach, and at a bench conference, stated that she was seeking Kane's opinion as to "Eltahir's character for peacefulness." The circuit court stated that it had sustained the objection because of "[t]he context of the question." Ford's counsel argued that a proper foundation had not been laid. The following exchange occurred: [PROSECUTOR:] They said that the victim was the aggressor, in that, that their client wasn't the aggressor. That their client -- I'm not asking about his character at this point, it's the victim's character.... And I believe that in opening, when they throw the issue down that my person was the aggressor, that I am able at that point, under that rule to rebut it.

They said that their client only reacted out of fear. That ... [the] victim was the aggressor. That he was only defending himself. THE COURT: You did say that, counsel....

In your opening. [FORD'S COUNSEL]: Well, ... the issue though, is ... that's not evidence. And as far as the state of the evidence goes, there is nothing to rebut as of yet. THE COURT: ... [T]he Court did not rule that you had opened the door for purposes of those discussions, as they related to [Ford.] In this particular case, you painted the victim as the faster, bigger, stronger, struggle that he was not -- your client was not the aggressor that the other fellow was. And his responses were out of scare [sic], and reaction, and the fear[.] * * * [FORD'S COUNSEL]: Right, but ... there was no statement in the opening that [ ] Eltahir was an angry -- or that he was (inaudible few words).

It's much more a description of his physical -- it's not about his peace -- THE COURT: You said your client acted out of fear because the other fellow was the aggressor.... The prosecution may offer evidence of his traits for peacefulness. And the evidence in this case, although not evidence in the traditional sense, ... you have, however, opened the door and she may present testimony that the victim, in this case, was of a peaceful nature. That's what the testimony is going to be.

Or testimony that would rebut [ ] your opening about his aggressiveness. After the bench conference, the prosecutor asked Kane about his opinion as to Eltahir's peacefulness during the following exchange: [PROSECUTOR: D]id you have an opportunity to -- so you talked about how you interacted with [Eltahir], did you have an opportunity to see him interact with other people? [KANE:] Yes. [PROSECUTOR:] Okay, and based on what you saw with his interactions with other people, and how [h]e was with you, did you form an opinion as to [Eltahir]'s peacefulness? [KANE:] Yes. [PROSECUTOR]: And what was that opinion? [KANE:] He was -- [FORD'S COUNSEL]: Same objection, Your Honor. THE COURT: Overruled. [KANE:] He was a cool person. He was never, you know nasty or hostile, or anything.

Kane testified that, on the evening of July 8, 2015, he and Eltahir picked up some beer from a liquor store and then sat on a park bench; Eltahir also had some liquor. McQueen and Platter joined them. Eltahir did not appear drunk, and was not slurring his words or stumbling. At some point, Ford arrived with groceries, which he put down on the sidewalk before sitting down on the bench.

Ford sat down next to Kane and began talking to Eltahir. Ford told Eltahir "I want to (expletive) your sister[,]" which caused Kane to get up and move because Eltahir did not "really like you talking about his family[.]" Kane testified that, when someone talked about Eltahir's family, Eltahir would "get mad. He wasn't getting like, you know, mad, mad, like that. He would just, you know, be upset." After Kane got up and moved, he walked back and forth because he "was a little tipsy[,]" and Ford and Eltahir were "arguing back and forth, or talking back and forth." At some point, Ford and Eltahir stood up, and Platter stepped between them, "trying to stop them from fighting or whatever they w[ere] getting ready to do." Kane saw Ford and Eltahir "pushing each other back and forth[,]" but he did not see "who pushed who first" because he had his back turned.

At some point thereafter, Kane saw blood on Eltahir's shirt. There had not been blood on Eltahir's shirt before the physical altercation with Ford, and nobody other than Ford had touched Eltahir. After Kane noticed that Eltahir was bleeding, Ford "told [Kane] to take his bags to" someone named Dewey, so he "grabbed [Ford's] bags, and [Ford] was already walking away." Kane took the bags to Dewey's home and then returned to the bench. Kane saw a scratch on Ford's arm, but he did not see any weapons on Eltahir.

Law enforcement officers interviewed Kane, who initially falsely said that he did not see anything and that he was not present during the altercation. According to Kane, he "didn't want to be there" or "be involved" because he was on probation for "stealing" and had "a couple of convictions for stealing[.]" After Kane learned that Eltahir died, however, he told the officers the truth. The officers showed a photograph array to Kane, who identified Ford as the person who stabbed Eltahir. Kane told officers that he was "a hundred percent" sure about his identification of Ford.

Kane also identified Ford in court. On cross-examination, Ford's counsel questioned Kane about Eltahir's reaction to Ford's statement about Eltahir's sister. Kane testified that Eltahir became upset, and that Eltahir and Ford eventually started "pushing back and forth." Kane denied, however, that Eltahir "jump[ed] up" or "lunged at [ ] Ford[.]" As a witness for the State, Brown testified that she used to date Ford, but they had broken up approximately seven or eight months before July 2015. On the evening of July 8, 2015, Ford arrived at Brown's home unannounced, and asked Brown for a favor.

Ford asked if he could stay at Brown's home "for a while because he said that he had got[ten] into a confrontation with a friend of his, or something. And the friend hit him in his head, and he stabbed him." Brown asked Ford why he did not wait for law enforcement, and Ford replied that "he was afraid, he didn't want to get into that[,]" and that he "was scared" of "[t]he police with all the drama with -- because the guy had hit him first, or something, and he had stabbed him." Ford told Brown that he had learned that Eltahir had died. Ford also told Brown that he had made a comment to Eltahir about "having sex with" Eltahir's sister. Ford told Brown that he had first stopped at his mother's house and "that's where he left the knife ... [t]hat he had stabbed the boy with." Ford told Brown that he had left the knife "with the shed, behind the shed, or something" at his mother's house.

Brown saw "a gash on [Ford]'s arm" and used peroxide and ointment on it. Ford told Brown that Eltahir had "stabbed him there[,]" although Ford did not say that he saw Eltahir with a knife-only that "they was struggling around." When Brown suggested that Ford go to a hospital, Ford "said no ... [b]ecause they [were] going to lock him up." The following morning, Brown advised Ford that he could not stay at her home and "that he had to go." The prosecutor then asked Brown: "What was [Ford's] reaction when you told him he could not stay?" Ford's counsel objected, and the circuit court initiated a bench conference, at which Ford's counsel argued that Ford's reaction was "completely irrelevant" and "more prejudicial than probative." The prosecutor responded that Ford's reaction went "to consciousness of guilt. He's wanting [Brown] to allow him to stay there, so that he can hide." The prosecutor explained: Consciousness of guilt, his reaction, you are not allowed to stay here, you have to get out, and he's very angry at her for doing that. I think it goes to - - I think it's probative as to how he's acting and conducting himself after this.

He's running, he's hiding, and he's now really angry when they ask him to leave. The circuit court overruled the objection, telling the prosecutor: "Okay. You are allowed to (inaudible few words). But [do] not go into any (inaudible word)." The prosecutor stated: "I have stayed away from the whole temper thing, based on what the Court has said so far, and I'm not going to ask her anything about his reputation or any of that, just what he did that morning." Brown's testimony resumed, and the following exchange occurred: [PROSECUTOR:] So you told him he had to leave about seven a.m., what was his reaction to that?

When you told him he had to leave? [BROWN:] I don't want to say what he said to me. He left. [PROSECUTOR:] Could you -- no, we unfortunately need to use those words here, in the courtroom. [BROWN:] He said (Expletive) you -- Ford's counsel objected, stating that the prosecutor's question was "formed differently than the previous question that [he] had objected to." The circuit court asked the prosecutor to "[r]e-ask [her] first question[,]" and the following exchange ensued: [PROSECUTOR:] What was his reaction when you told him he had to leave? [FORD'S COUNSEL]: And I would just for the purpose of the record renew my objection. THE COURT: I understand that. Ma'am what was his reaction when you told him to leave, what was his reaction? [BROWN]: I don't know what you want me -- to respond and say.

To say what? He was upset? I don't know what you want. He was upset all night so -- that was just the icing on the cake. [FORD'S COUNSEL]: I would object, I would object at this point....

And I would just ask the record to reflect that the witness is asking for guidance from the [prosecutor]. [BROWN]: No. [FORD'S COUNSEL]: Who obviously is not providing any guidance. THE COURT: No, no, no, stop, everybody. [BROWN]: No. THE COURT: Everybody, everybody make it simple. Ma'am, it's just a very simple question, okay, it's just a very simple question, if you can answer it. And if you can't answer it, indicate you can't.

The question was, when you told him that he could not stay, what was his reaction? [BROWN]: Am I supposed to tell you what he said, or what he did? THE COURT: What he did, not what he said.... Tell me, that was the first question, what was his reaction. [BROWN]: -- he cursed me out, and he slammed back the front door and left. Brown testified that law enforcement "tackled [Ford] down out in the parking lot ... [a]bout two, three minutes" later.

As a witness for the State, Detective William Ballard of the Fugitive Apprehension Unit of the Anne Arundel County Police Department testified that he was part of the team that apprehended Ford on July 9, 2015. After Ford was arrested and handcuffed, he was placed in Detective Ballard's unmarked vehicle. Detective Ballard sat with Ford in the vehicle while awaiting instructions on where to transport Ford. At that point, Ford had not been told the reason for his arrest.

Detective Ballard did not ask Ford any questions while the two were in the vehicle, but Ford made statements. Over Ford's counsel's objection, Detective Ballard testified that, as detectives were approaching Brown's home, Ford "said that they had nothing to do with this." Detective Ballard advised Ford that the detectives "just needed to identify the residence for further investigation, or something[,]" to which Ford responded "he did not want them to lose their house and that there was nothing in there, or something like that." Ford also "said that he hid it in the county." While Ford was being transported, he "continued to make statements," telling Detective Ballard "that he cut me. He ... motioned to his -- I believe it was his right arm -- which was a bandage on his right arm." Ford also asked Detective Ballard: "[H]ow's he doing?" Detective Ballard advised Ford that he did not know anything about the case and that other detectives would speak with Ford shortly. "[A]t that point[, Ford] began to ask [ ] more questions[,]" so Detective Ballard advised Ford of his rights, and Ford made no further statements about the incident.

As a witness for the State, Detective Kelly Harding of the Anne Arundel County Police Department testified that she was the lead detective in the investigation of Eltahir's homicide. Detective Harding identified Ford as a potential suspect because McQueen and Kane identified him in photographic arrays. After Ford was arrested, Detective Harding advised Ford of his rights, and she and her partner, Detective Jason McNemar, interviewed Ford. Parts of Detective Harding's and Detective McNemar's interrogation of Ford were played for the jury, and, over Ford's counsel's objections, the circuit court admitted the recording and transcript of the interrogation.

During the interrogation, Ford advised the detectives that he "cut" Eltahir and the following exchanges occurred: [DETECTIVE HARDING]: And so we'd like to kind of hear your side of - of what exactly he said and - and - and what happened. [FORD]: You know what, it happened so fast, I'm being honest, I don't even remember. [DETECTIVE HARDING]: You don't remember what he said? [FORD]: I have no idea. I - I know he hit me. [DETECTIVE HARDING]: Okay, where did he hit you? [FORD]: And I'm 59 years old. I'm 58 years old, he hit me in my face. In my jaw. * * * [DETECTIVE HARDING]: Why?

Why, do you remember why? [FORD]: Yeah, 'cause I don't know, it was something about - it some girls walking by and I mentioned they, his culture. They looked like his sisters. And he said, "You talking about my sisters like that?" And I said, "Don't - you getting all offensive but you sleeping with them?" Like and - and he went off. He jumped up, he clocked me, that's it. [DETECTIVE HARDING]: And then what happened? [FORD]: That was it.

That's it. [DETECTIVE HARDING]: And he hit you? [FORD]: Yeah. [DETECTIVE MCNEMAR]: And then what happened after he hit you? [FORD]: That's when I told him, "You done messed up," and I cut him. [DETECTIVE HARDING]: You cut him? Do you remember where you cut him? [FORD]: No.... I'm telling you, I don't even, I don't remember. It happened so fast, I don't. * * * [DETECTIVE HARDING]: So how did you get this cut on your arm? [FORD]: From him.

I don't remember what he cut me with. He cut me with something, I don't know if he had a knife or what. I told you, I don't remember.... This thing happened so fast, I still don't remember.

I'm not even seeing it. I just remember seeing the blood on him and him saying, "You cut me. You f[***]ing cut me, you f[***]ing cut me." You know, I heard him say that, that was it. * * * [DETECTIVE HARDING]: Okay. So what did you do with the knife that cut him? [FORD]: I hid it....

It's down on ... my mother's property. * * * [DETECTIVE HARDING]: Is it, does it have a color handle? [FORD]: Yeah, it's got a blue handle. [DETECTIVE HARDING]: A blue handle? So when he punched you did - did he knock you out or anything like that? [FORD]: No, it just hurt me and I went to swing and that's all I remember. Detective Harding testified that she arranged for law enforcement to go to Ford's mother's property to recover the knife that he hid. As a witness for the State, Emilie Dembia, a forensic chemist at the Anne Arundel County Police Department's crime laboratory, was accepted as an expert in forensic serology and DNA analysis.

Dembia testified that she obtained DNA profiles for Ford and Eltahir, and compared those profiles with ones that were obtained from various items of evidence. Dembia took three different samples from the knife-"a sample from the handle," "a sample from a stain on the blade of the knife," and "a sample from around the stained areas on the blade of the knife." Dembia testified that "a major component of" the sample from the handle was consistent with Ford's known DNA profile, "Eltahir was excluded as the source of that major component[,]" and "[t]he minor component ... was too limited to make any conclusions about." Dembia testified that the "DNA profile from the stain on the blade and from the blade matche[d] the known DNA profile of [ ] Eltahir" and "Ford [was] excluded as the source of this DNA." Stated otherwise, the sample from the handle of the knife matched Ford's DNA profile, and the samples from the blade matched Eltahir's DNA profile. On cross-examination, Dembia acknowledged that there was not enough DNA on the knife's handle to be able to make any conclusions about the minor contributor. That meant that Dembia could not include or exclude Eltahir as the minor contributor with respect to the knife's handle.

As a witness for the State, Dr. John Stash, an Assistant Medical Examiner with the Office of the Chief Medical Examiner in Maryland, was accepted as an expert in forensic pathology. Dr. Stash testified that he oversaw the autopsy of Eltahir, who was "a well[-]developed, well[-]nourished male, six feet in height, 149 pounds." Eltahir "had a stab wound on the left side of [his] chest[,]" which was "consistent with a single-edged knife" and "approximately three-and-a-half inches" deep. Toxicology tests were run, and Eltahir tested positive for ethanol at "0.19 percent" in his heart and "0.25 percent" in his eye fluid. Dr. Stash concluded that Eltahir "would be intoxicated." Dr. Stash did not observe other injuries to Eltahir, such as cuts on his arms or hands or signs of bruising.

Dr. Stash testified that the knife in evidence was consistent with the injury to Eltahir's chest. Dr. Stash opined to a reasonable degree of medical certainty that the cause of Eltahir's death was "a stab wound to the chest" and that the manner of death was homicide. After the State rested its case, Ford's counsel moved for judgment of acquittal as to carrying a weapon openly with intent to injure, arguing that the knife did "not meet the statutory definition of a deadly and dangerous weapon[.]" The circuit court granted the motion for judgment of acquittal as to the count for carrying a weapon openly with intent to injure. Ford's counsel also made a motion for judgment of acquittal as to second-degree murder, which the circuit court denied.

Ford was then advised of his right to testify, and he elected to remain silent. Ford rested without calling any witnesses, the circuit court instructed the jury, and counsel gave closing arguments. Following closing arguments, the jury began its deliberations. The jury found Ford guilty of second-degree murder.

On December 20, 2016, the circuit court sentenced Ford to twenty-five years' imprisonment, with all but twenty years suspended, followed by five years' probation. Ford appealed. On December 20, 2017, in a reported opinion, the Court of Special Appeals affirmed Ford's conviction. See Ford v. State , 235 Md. App. 175 , 204, 175 A.3d 860 , 876 (2017).

The Court of Special Appeals held that the circuit court properly admitted evidence of Eltahir's character for peacefulness, explaining: We hold that the circuit court reasonably allowed McQueen and Kane to testify to Eltahir's character for peacefulness in response to Ford's opening statement.... The reasonableness of the court's decision here is underscored by the three decisions discussed above ... allowing trial courts to admit otherwise inadmissible evidence for the purpose of anticipatory rehabilitation and rebuttal. Because Maryland Rule 5-611(a) gives trial courts the discretion to allow anticipatory rehabilitation, it could reasonably be interpreted as providing trial courts the discretion to allow anticipatory rebuttal evidence under Maryland Rule 5-404(a)(2)(C). Such a conclusion would be consistent with the dicta [in one case], which would allow the anticipatory rebuttal of evidence referenced in an opening statement.

Under these circumstances, we cannot say that the [circuit] court acted in an arbitrary or capricious manner. We hold, therefore, that the circuit court did not abuse its discretion in allowing McQueen and Kane to testify to Eltahir's character for peacefulness. Id. at 194, 195-96 , 175 A.3d at 871-72 (cleaned up). The Court of Special Appeals also held that the circuit court did not abuse its discretion in permitting Brown to testify about Ford's reaction to being told that he had to leave her home, determining that "Brown's testimony was admissible to show Ford's guilty state of mind"- i.e. , consciousness of guilt-and that "the circuit court did not abuse its discretion in concluding that the probative value of the testimony outweighed the risk of undue prejudice and considerations of cumulative evidence." Ford , 235 Md. App. at 196 , 175 A.3d at 872 .

On February 8, 2018, Ford petitioned for a writ of certiorari , raising the following three issues: 1. Under Maryland Rule 5-404(a)(2)(C), which provides, "In a homicide case, the prosecutor may offer evidence of the alleged victim's trait of peacefulness to rebut evidence that the victim was the first aggressor," is the State allowed to present evidence of the alleged victim's trait of peacefulness, in its case[-]in[-]chief, to rebut opening statements by defense counsel that the defendant was not the aggressor and acted in self-defense? 2. What is the correct standard for determining whether a defendant's conduct is too ambiguous or equivocal to be admissible as evidence of "consciousness of guilt"? 3. Where the State was permitted to elicit testimony that [Ford] went to the house of a witness after he stabbed the victim, that when the witness asked him to leave [Ford] "slammed" the door and "cursed" out the witness, that [Ford] also told the witness, inter alia , that he left the scene of the stabbing because he was "scared" of the "police" and that he did not think there was a self-defense law in Maryland, and where the [prosecutor] in closing argument contrasted [Ford]'s reaction to being asked to leave, during which he "raged around," with the "easy[ ]going" nature of the victim, inviting an "improper inference," according to the Court of Special Appeals, did the [circuit] court err in admitting the witness's testimony regarding [Ford]'s reaction to being asked to leave as evidence of "consciousness of guilt"? [ 1 ] On April 9, 2018, this Court granted the petition.

See Ford v. State , 458 Md. 580 , 183 A.3d 156 (2018). DISCUSSION I. Evidence of the Alleged Victim's Trait of Peacefulness The Parties' Contentions Ford contends that the circuit court erred in allowing the State to present evidence of Eltahir's trait of peacefulness in its case-in-chief-through testimony by McQueen and Kane-to rebut statements made by Ford's counsel in opening statement that Ford was not the aggressor and acted in self-defense. Ford argues that, under the plain language of Maryland Rule 5-404(a)(2)(C), opening statements are not "evidence," and a prosecutor may only "rebut" evidence that the defendant offers. Ford asserts that the plain meaning of the term "evidence" excludes statements counsel makes during an opening statement, i.e. , that opening statements do not constitute evidence.

Ford maintains that the plain meaning of "rebuttal evidence" is "[e]vidence offered to disprove or contradict the evidence presented by an opposing party[,]" and that rebuttal evidence of a victim's character trait for peacefulness is permitted only after the defendant introduces evidence that the victim was the first aggressor. (Cleaned up). Ford contends that the "default policy" underlying Maryland Rule 5-404(a) is to exclude character evidence, and that Maryland Rule 5-404(a)(2)(C), as an exception to that general rule, should be narrowly construed. Ford argues that narrowly construing Maryland Rule 5-404(a)(2)(C) is consistent with a plain language reading of the subsection, "such that 'evidence' is not [to] be read broadly to include opening statements and 'rebut' is not to be read broadly[.]" Ford asserts that the circuit court's error in permitting the State to offer evidence of Eltahir's character trait for peacefulness was not harmless because the prosecutor emphasized Eltahir's peacefulness during the State's closing argument.

The State responds that the circuit court properly permitted it to introduce evidence in its case-in-chief of Eltahir's trait of peacefulness because Ford's counsel stated during his opening statement that Eltahir was the aggressor and signaled that evidence would be introduced to prove as much. The State contends that the circuit court had the discretion "to vary the order of proof established by [Maryland] Rule 5-404(a)(2)(C)" to permit the State to offer rebuttal evidence in its case-in-chief where Ford's opening statement opened the door to such evidence. The State argues that Ford's counsel placed Eltahir's action and character at issue in his opening statement. The State maintains that, pursuant to Maryland Rule 5-611, the circuit court had the authority to control the order of the presentation of evidence to, among other things, avoid the needless consumption of time.

The State contends that case law establishes that the State's case-in-chief may include rebuttal evidence if the defense opens the door during opening statement or on cross-examination of a State's witness. The State argues that case law also recognizes that an opening statement may open the door to certain evidence that would otherwise be inadmissible at trial. The State asserts that, in any event, any error was harmless beyond a reasonable doubt because self-defense was not generated. Standard of Review Generally, an appellate court reviews for abuse of discretion a trial court's admission of evidence.

See Thomas v. State , 397 Md. 557 , 579, 919 A.2d 49 , 62 (2007) (citation omitted). A trial court abuses its discretion in admitting evidence that is inadmissible under a Maryland Rule. See id. at 579 , 919 A.2d at 62 . An appellate court reviews without deference a trial court's interpretation of a Maryland Rule.

See Davis v. Slater , 383 Md. 599 , 604, 861 A.2d 78 , 80-81 (2004). Maryland Rule 5-404(a) Maryland Rule 5-404(a), concerning character evidence generally, provides: (a) Character evidence. (1) Prohibited uses . Subject to subsections (a)(2) and (3) of this Rule, evidence of a person's character or character trait is not admissible to prove that the person acted in accordance with the character or trait on a particular occasion.

(2) Criminal and delinquency cases. Subsection (a)(2) of this Rule applies in a criminal case and in a delinquency case. For purposes of subsection (a)(2), "accused" means a defendant in a criminal case and an individual alleged to be delinquent in an action in juvenile court, and "crime" includes a delinquent act as defined by Code, Courts Article, § 3-8A-01. (A) Character of accused.

An accused may offer evidence of the accused's pertinent trait of character. If the evidence is admitted, the prosecution may offer evidence to rebut it. (B) Character of victim. Subject to the limitations in Rule 5-412, an accused may offer evidence of an alleged crime victim's pertinent trait of character.

If the evidence is admitted, the prosecutor may offer evidence to rebut it. (C) Homicide case. In a homicide case, the prosecutor may offer evidence of the alleged victim's trait of peacefulness to rebut evidence that the victim was the first aggressor. (3) Character of witness.

Evidence of the character of a witness with regard to credibility may be admitted under Rules 5-607, 5-608, and 5-609. Thus, the general rule under Maryland Rule 5-404(a)(1) is that "evidence of an individual's character or character trait is inadmissible to prove that[,] on a particular occasion, that individual acted in accordance with that character trait." Williams v. State , 457 Md. 551 , 564, 179 A.3d 1006 , 1014 (2018) (citation omitted). Maryland Rule 5-404(a)(2), however, sets forth three exceptions to that general rule of inadmissibility. See id. at 564 , 179 A.3d at 1014 (This Court referred to Maryland Rule 5-404(a)(2)(A) as providing a "commonly known caveat to the general rule[.]").

Analysis Here, we hold that Maryland Rule 5-404(a)(2)(C) does not permit a prosecutor to offer evidence of an alleged victim's trait of peacefulness to rebut statements made by defense counsel in opening statement because opening statements are not evidence, and Maryland Rule 5-404(a)(2)(C) specifically requires that " evidence that the victim was the first aggressor" be introduced before the prosecutor may rebut such evidence with "evidence of the alleged victim's trait of peacefulness[.]" (Emphasis added). Ford's counsel's remarks during opening statement did not "open the door" for the prosecutor to present evidence of Eltahir's trait of peacefulness. This is so because, even if Ford's counsel's remarks placed Eltahir's actions and character at issue and somehow indicated that Ford would perhaps offer evidence to prove that Eltahir was the aggressor, Maryland Rule 5-404(a)(2)(C) definitively requires evidence that the victim was the first aggressor-not merely a statement indicating that some evidence might possibly be introduced-to trigger the State's ability to rebut with evidence of the victim's trait of peacefulness. Accordingly, the circuit court erred in concluding that Ford's counsel had "opened the door" for the State to present evidence of Eltahir's trait of peacefulness, and in permitting the State, over Ford's objection, to elicit testimony in its case-in-chief from McQueen that Eltahir was a "quiet, nice person[, n]ice to everybody[,]" and from Kane that Eltahir "was a cool person[, h]e was never, you know nasty or hostile, or anything." Nonetheless, we conclude that the error was harmless beyond a reasonable doubt.

We begin by examining the plain language of Maryland Rule 5-404(a)(2)(C), which simply provides that, in homicide cases, "the prosecutor may offer evidence of the alleged victim's trait of peacefulness to rebut evidence that the victim was the first aggressor." Maryland Rule 5-404(a) does not define the word "evidence" as used in Maryland Rule 5-404(a)(2)(C), and, specifically, does not indicate whether "evidence" includes opening statements for purposes of the Rule. Nor does Maryland Rule 5-404(a) provide the meaning of the word "rebut." Under these circumstances, it is appropriate to turn to the "natural and ordinary meaning" of the terms "evidence," "rebut," and "rebuttal evidence." Wagner v. State , 445 Md. 404 , 417, 128 A.3d 1 , 9 (2015) (citation omitted). To ascertain the natural and ordinary meaning of the terms, we look to dictionary definitions as a starting point. See, e.g. , Chow v. State , 393 Md. 431 , 445, 903 A.2d 388 , 396 (2006) ("[I]t is proper to consult a dictionary or dictionaries for a term's ordinary and popular meaning." (Citations omitted) ).

Black's Law Dictionary defines "evidence," in relevant part, as follows: 1. Something (including testimony, documents, and tangible objects) that tends to prove or disprove the existence of an alleged fact; anything presented to the senses and offered to prove the existence or nonexistence of a fact < the bloody glove is the key piece of evidence for the prosecution>. 2. See fact in evidence under FACT. 3. The collective mass of things, esp[ecially] testimony and exhibits, presented before a tribunal in a given dispute < the evidence will show that the defendant breached the contract>.

Evidence, Black's Law Dictionary (10th ed. 2014). Similarly, Merriam-Webster defines "evidence," in pertinent part, as: something that furnishes proof: TESTIMONY specifically : something legally submitted to a tribunal to ascertain the truth of a matter[.] ... something that furnishes or tends to furnish proof especially : something (as testimony, writings, or objects) presented at a judicial or administrative proceeding for the purpose of establishing the truth or falsity of an alleged matter of fact[.] Evidence, Merriam-Webster (2018), https://www.merriam-webster.com/dictionary/evidence [https://perma.cc/F2UP-RTYN]. These definitions demonstrate that the term "evidence" means testimony, documents, objects, or exhibits that are offered during a judicial proceeding to prove or disprove the existence of an alleged fact; i.e. , evidence is something that is submitted to a tribunal, in one of various forms, that tends to establish the truth or falsity of an alleged fact. Thus, utilizing the ordinary definition of "evidence," it is clear that opening statements do not constitute evidence.

Notably, the definitions of "evidence" do not identify an opening statement as an example of "evidence"; rather, the definitions identify testimony, writings/documents, objects, and exhibits as types of "evidence." Put simply, the term "evidence"-although encompassing a wide variety of things, such as testimony, documents, or objects that are offered to prove or disprove the existence of an alleged fact-does not encompass assertions that are made during opening statements. Such statements do not, and are not, given to prove or disprove the existence of an alleged fact, but instead are made to provide the fact-finder with a party's overview of the case and a preview of the evidence that is to be presented at trial. Black's Law Dictionary defines "opening statement" as follows: At the outset of a trial, an advocate's statement giving the fact-finder a preview of the case and of the evidence to be presented. [ ] Although the opening statement is not supposed to be argumentative, lawyers - purposefully or not - often include some form of argument. The term is thus sometimes referred to as opening argument . - Also termed opening address .

Opening Statement, Black's Law Dictionary (10th ed. 2014). And, Merriam-Webster provides, in pertinent part, the following legal definition of "opening statement": "a statement to the jury by trial counsel before the presentation of evidence that usually explains the nature of the case, the factual matters to be proven, and the evidence to be presented and that summarizes the arguments to be made[.]" Opening Statement, Merriam-Webster (2018), https://www.merriam-webster.com/legal/opening%20statement [https://perma.cc/CW3U-N6V8]. It is clear that an "opening statement" is a statement by counsel made at the beginning of a trial, before the presentation of evidence, in which counsel usually provides the fact-finder with an outline of the case, the evidence that is to be presented, and the arguments that are to be made. In other words, an opening statement is not itself evidence, as it is given prior to the presentation of evidence, and often includes a preview of the evidence that counsel expects to present during trial.

Additionally, consistent with the plain meaning of the terms "evidence" and "opening statement," this Court has long concluded that opening statements are not evidence. See, e.g. , Keller v. Serio , 437 Md. 277 , 288, 85 A.3d 283 , 289 (2014) ("[O]pening statements are not evidence[.]" (Citation omitted) ). Because it is well established that opening statements are not evidence, the Maryland Criminal and Civil Pattern Jury Instructions state as much. See MPJI-Cr 3:00 ("Opening statements and closing arguments of lawyers are not evidence.

They are intended only to help you to understand the evidence and to apply the law."); MPJI-Cv 1:7 (same). Black's Law Dictionary defines the term "rebut" as "[t]o refute, oppose, or counteract (something) by evidence, argument, or contrary proof < rebut the opponent's expert testimony> < rebut a presumption of negligence>." Rebut, Black's Law Dictionary (10th ed. 2014). And, Black's Law Dictionary defines "rebuttal evidence" as "[e]vidence [that is] offered to disprove or contradict the evidence [that is] presented by an opposing party[,]" and states "[r]ebuttal evidence is introduced in the rebutting party's answering case; it is not adduced, e.g., through cross-examination[,] during the case-in-chief of the party [that is] to be rebutted." Rebuttal Evidence, Black's Law Dictionary (10th ed. 2014). "Rebuttal evidence" is also defined as "evidence that tends to refute or discredit an opponent's evidence[.]" Rebuttal Evidence, Merriam-Webster (2018), https://www.merriam-webster.com/dictionary/evidence [https://perma.cc/F2UP-RTYN].

These definitions demonstrate that the very concept of rebuttal evidence is to disprove or contradict evidence that was presented by the opposing party; i.e. , there must first be evidence offered by one party before the other party may rebut it through rebuttal evidence. Thus, the plain language of Maryland Rule 5-404(a)(2)(C) makes clear that a prosecutor is not permitted to offer evidence of an alleged victim's trait of peacefulness to rebut statements that defense counsel makes during an opening statement. Rather, under the plain language of Maryland Rule 5-404(a)(2)(C), there must first be evidence presented by the defense that the victim was the aggressor before a prosecutor may offer rebuttal evidence of the alleged victim's trait of peacefulness. Stated otherwise, it is only the introduction of evidence by the defense that can open the door for a prosecutor in a homicide case to introduce evidence of the victim's trait of peacefulness.

To interpret "evidence" to include "opening statement" would contradict the plain language of Maryland Rule 5-404(a)(2)(C), and the plain meaning of the words. Nothing whatsoever in Maryland Rule 5-404(a) indicates that "evidence" includes opening statements. Although the plain language of Maryland Rule 5-404(a)(2)(C) is unambiguous, we briefly look to the history and purpose of the Rule, which confirms that, under Maryland Rule 5-404(a), a defendant must first offer evidence of the victim's pertinent character trait-not make assertions during an opening statement-to open the door for the State to rebut that evidence. Title 5 of the Maryland Rules, entitled "Evidence," became effective on July 1, 1994.

See Sessoms v. State , 357 Md. 274 , 285, 744 A.2d 9 , 15 (2000). As originally adopted, Maryland Rule 5-404(a)(2)(C) was part of Maryland Rule 5-404(a)(1)(B), which provided, in pertinent part, as follows: (a) Character evidence generally . (1) In general. Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: ...

(B) Character of victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor [.] Md. R. 5-404 (1994) (emphasis added) (paragraph breaks omitted). In 2010, this Court adopted amendments to Maryland Rule 5-404(a), resulting in the current structure of Maryland Rule 5-404(a)(2)(A) through (C). See Court of Appeals of Maryland, Rules Order at 9 (Oct. 20, 2010), available at https://www.mdcourts.gov/sites/default/files/rules/order/ro165.pdf [https://perma.cc/N9L5-YA95].

On April 16, 2010, prior to the Rule's amendment, the Standing Committee on Rules of Practice and Procedure conducted a meeting, at which Professor Lynn McLain described Maryland Rule 5-404(a) as follows: As the current Rule exists, there are two separate boxes, one for the victim's character and one for the accused's character. It is up to the defendant to open up either one of those issues. If the defendant offers evidence of the victim's pertinent character traits, that opens the door to the prosecution to rebut that evidence , but only the evidence of the victim's pertinent character traits. Minutes of the Standing Committee on Rules of Practice and Procedure, Apr. 16, 2010, at 30 (emphasis added).

Stated otherwise, the defendant controls the introduction of character evidence by offering such evidence in the first instance; i.e. , it is character evidence being offered by the defendant-not an assertion made during opening statement-that triggers or opens the door for the State to rebut that evidence under Maryland Rule 5-404(a). Here, there was simply no evidence offered by Ford that Eltahir was the aggressor, thereby triggering the State's ability to offer evidence of Eltahir's trait of peacefulness under Maryland Rule 5-404(a)(2)(C). Instead, during opening statement,