Hall, Cummings, Lubin v. State

Nazarian, J. Michael Hall, Tywan Cummings, and Daquawn Lubin were tried together and convicted in the Circuit Court for Prince George’s County of first-degree burglary, first-degree assault, use of a firearm in a crime of violence, and related offenses. All three challenge a variety of the court’s evidentiary decisions; Mr. Hall also contends that the trial court erred by failing to merge multiple convictions for conspiracy and denying his motion for mistrial, and Messrs. Cummings and Lubin argue that the evidence was insufficient to support their convictions. We hold that the trial court erred when it precluded defense counsel from introducing Raymond Clark’s prior manslaughter conviction for impeachment purposes and in prohibiting the defense from cross-examining Mr. Clark and another witness about the conviction and their possible motives to lie.

And after determining that the evidence was ¹²² sufficient to convict Messrs. Cummings and Lubin, we reverse and remand for further proceedings. I. BACKGROUND On March 28, 2015, Janise Ray and Mr. Clark returned by car to their home in the Shady Side Garden Apartment Complex. They were arguing on the drive and arrived around 7:00 PM.

Mr. Clark got out of the car first and headed to the apartment. Ms. Ray stayed behind. Several minutes later, Ms. Ray gathered all of the items in the car—including her purse, a pizza, a two-liter bottle of soda, and a brown bag that had been behind the passenger seat—and walked to the apartment. Along the way, she saw two men sitting on a bench, one of whom got up and walked in front of her toward her building.

The other man got up and walked behind her, and then both men went down the stairs to the lower-level apartments while Ms. Ray walked up the stairs toward hers. When she got to top of the stairs, Ms. Ray turned around and saw the two men standing behind her. They wore black ski masks and held guns. The men motioned toward the door with the guns and told Ms. Ray to go inside.

As one of them opened the door, the other pushed her inside and onto the couch. Ms. Ray screamed for Mr. Clark and curled up in a ball. Mr. Clark heard Ms. Ray’s screams and ran into the living room, where he saw several masked men brandishing guns. Mr. Clark grabbed one of the men’s arms and the two struggled over the gun, and Mr. Clark ultimately wrestled it away.

Gunfire was exchanged, and one man (later identified as Dexter Manigault) was shot and fell to the ground. Mr. Manigault got back up, and he and the others made their way out the door as more shots flew. Police later recovered twenty shell casings from the apartment, as well as the gun that Mr. Clark claimed that he had taken from one of the attackers. Mr. Manigault was badly wounded from the gunfire, and he fell to the ground in the apartment complex’s courtyard. ¹²³ Krystal Moon, a volunteer emergency medical technician who lived nearby, offered to render first aid and called 911.

But the men ignored her offer and instead carried Mr. Manigault to a black SUV, loaded him in the backseat, and drove to a nearby fire station. They also dropped Mr. Cummings off at his home on the way. Once at the fire station, the men got out of the vehicle, and one yelled that “there was a guy shot from an attempted robbery.” Mr. Lubin fled and was later apprehended by police. Mr. Manigault succumbed to his gunshot wounds.

The other three, Messrs. Cummings, Lubin, and Hall, were arrested and tried together. At trial, Mr. Hall testified on his own behalf and Mr. Clark testified for the State. Mr. Hall testified that there was no attempted robbery, but that he and the other men went to the apartment complex to buy drugs from Mr. Clark, whom Mr. Manigault knew but the others did not.

Mr. Clark was upset because Mr. Manigault had brought a stranger to his house, but Mr. Manigault “vouched” for Mr. Hall, and the three of them went inside to complete the drug transaction. The situation soured, though, when they made the exchange. Mr. Manigault gave Mr. Clark $1,200, $800 of which was counterfeit; in return, Mr. Clark handed Mr. Manigault a brown paper bag that he slid into the waistband of his pants. As Mr. Clark began counting the money, he realized some of it was counterfeit and started shooting.

Mr. Manigault fell to the ground and fired back, and Mr. Hall began to run. But after realizing that Mr. Manigault was on the ground, Mr. Hall returned to help Mr. Manigault walk; this effort ultimately failed because Mr. Manigault was too badly wounded. Mr. Hall returned to the SUV and asked Mr. Lubin to help him carry Mr. Manigault to the vehicle. They then drove to a nearby fire station to get medical aid for Mr. Manigault, but stopped before arriving to let Mr. Cummings out.

Before Mr. Clark testified, the State moved in limine to preclude the defense from impeaching him with his prior manslaughter conviction. Mr. Hall’s attorney argued that the conviction was relevant for impeachment and for evidence of motive to fabricate a false story because Mr. Clark’s conviction ¹²⁴ prohibited him from possessing a gun, and thus Mr. Clark had a motive to lie about the provenance of the guns involved in the incident. The court ruled that the conviction could not be used for impeachment because it was not an infamous crime and did not bear on Mr. Clark’s credibility, and directed the defense to approach the bench before asking about it. As Mr. Hall’s counsel prepared to ask Ms. Ray whether she knew that Mr. Clark was prohibited from possessing a gun, he asked to approach the bench and was told by the court that he could only ask Ms. Ray whether Mr. Clark had a gun, not whether she knew he was prohibited from having one.

Later, when cross-examining Mr. Clark, Mr. Hall’s attorney attempted to question him about the fact that he was prohibited from possessing a gun, and the court precluded any questions on the subject. At the conclusion of the jury trial, all three defendants were found guilty. This timely appeal followed.

IX

DISCUSSION Some of the contentions in this consolidated appeal overlap and others are unique to each individual. 1 Messrs. Cummings ¹²⁵ and Lubin contend that the trial court erred by prohibiting the defense from using Mr. Clark’s prior conviction for manslaughter for impeachment. Messrs. Hall and Cummings contend that the trial court erred in prohibiting their attorneys from cross-examining Ms. Ray and Mr. Clark about their common motive to provide false testimony.

Mr. Hall contends separately that the trial court erred in permitting the State to cross-examine him about his pre-arrest silence, refusing to give a requested self-defense jury instruction, failing to merge multiple convictions for conspiracy when the State only offered proof of a single conspiracy, and denying his motion for mistrial. Mr. Lubin contends that the trial court erred by sentencing him for an offense for which he was not convicted and complains as well that the evidence was not sufficient to sustain his conviction. And Mr. Cummings contends that the evidence was not sufficient to sustain his conviction. As it turns out, we don’t need to address all of these contentions.

A. The Trial Court Erred When It Precluded The Defense From Impeaching Mr. Clark’s Credibility With His Manslaughter Conviction. All three appellants contend, in slightly different ways, that the trial court erred by precluding them from introducing Mr. Clark’s prior manslaughter conviction for impeachment purposes. The State doesn’t dispute that the court erred in the way it characterized the conviction, but counters that the issue is not preserved because Messrs. Cummings and Lubin never joined in Mr. Hall’s preliminary attempt to introduce the conviction, nor did they object to the court’s ruling to exclude it.

We hold that the issue is preserved because the trial court’s categorical declaration that manslaughter is not an impeacha ¹²⁶ ble offense served as a final ruling on the matter and that the error compels us to reverse the convictions. 1. The defense preserved its objections. Before Ms. Ray was cross-examined by the defense, and before Mr. Clark testified, the State moved in limine to exclude any reference to Mr. Clark’s prior manslaughter conviction. The State argued that the conviction should not be admitted into evidence because it was not an impeachable offense, and the court agreed: [THE STATE]: I know there is a prior conviction but not impeachable.

THE COURT: What is the prior conviction? [THE STATE]: Manslaughter. THE COURT: I think everyone probably is in agreement. If they ask something that you feel is inappropriate, just object. [THE STATE]: Yes. I’m addressing it now because I would like to try to avoid the jury even hearing it. [MR.

HALL’S COUNSEL]: I do think in a way it is relevant in that—I think some of the evidence will show, it is our theory that Mr. Clark actually had a firearm there that evening. He is prohibited from possessing a firearm because of the prior conviction. So to the extent that is— that was the point I was going to try to make as a motive to lie about the firearm. THE COURT: Even assuming all that is true, and I do.

That is neither an infamous crime, nor a crime that would bear on credibility. The law says you can’t do it. There is nothing inherently evil or wrong about it. [MR. HALL’S COUNSEL]: Our position is that is why they are not saying that he used his weapon that evening.

That is why they are making up this version of events to avoid responsibility for him admitting to having a firearm. [THE STATE]: Again, I think that any mention of a prior conviction that is not a crime that goes towards moral turpitude or would be relevant for purposes of determining ¹²⁷ [credibility] should be prohibited. They should be prevented from mentioning it. THE COURT: [Mr. Hall’s counsel], if you feel it is relevant, if you decide you will inquire. Obviously you wouldn’t be inquiring of this witness, would you, Ms. Ray? [MR.

HALL’S COUNSEL]: To the extent that I did think they are agreeing to make up a version of events. She, obviously, knows him and has known him for some time. [THE COURT]: Ask to approach the bench before you ask any questions and I will rule, okay? [MR. HALL’S COUNSEL]: Okay. (Emphases added.) After the discussion of Mr. Clark’s prior conviction, the State re-called Ms. Ray.

Mr. Hall’s counsel was the first on the defense side to cross-examine her, and, as instructed by the court, asked to approach the bench before asking about Ms. Ray’s knowledge of Mr. Clark’s prior conviction or his right to possess a gun: [THE COURT]: What do you want to ask? [MR. HALL’S COUNSEL]: Yeah. [THE COURT]: I think you can ask did he have a gun. [MR. HALL’S COUNSEL]: Okay. [THE COURT]: Assuming she says, no, what is your follow-up? [MR. HALL’S COUNSEL]: My follow-up would be that she knew that he is not allowed to have a gun. [THE STATE]: Objection.

I mean whether she has knowledge of— [THE COURT]: I mean the first question is fine. I think anything further is really pushing it. [I]t is sort of like why didn’t he have a gun, which is never really a relevant question. The issue is did he or didn’t he. [MR. HALL’S COUNSEL]: She is saying he did not have a gun in order to protect him from further prosecution. [THE STATE]: I don’t see how it goes to either the relevancy— ¹²⁸ THE COURT: I don’t see how—she hasn’t said anything about him taking a gun from one of the others, or using a gun, or what gun he used, so I will sustain it.

You can ask did he have a gun in the house. She already said to her knowledge, no. Other then [sic] that there is no evidence what weapon he used to fire back. [MR. HALL’S COUNSEL]: I think that it will come out later.

THE COURT: I will sustain anything beyond that. When Mr. Clark testified, Mr. Hall’s counsel also attempted to cross-examine him about the fact that the prior conviction prohibited him from possessing a gun, and Mr. Lubin’s counsel attempted to explain the conviction’s relevance, but the court again prohibited any questions on the subject: [MR. HALL’S COUNSEL]: At this point I was going to ask him about whether or not he knew at the time that he was prohibited from owning a firearm. [THE STATE]: The State is objecting to that. * * * THE COURT: Is there any evidence he possessed a gun other than he had it in his hand and was shooting? [MR. HALL’S COUNSEL]: Not yet.

THE COURT: You are saying that that is the possession? [MR. HALL’S COUNSEL]: That is the possession. There may be some later. [MR. LUBIN’S COUNSEL]: If I may?

I think the relevance here is if he had a gun in fact he would lie about it because he knows he is a felon in possession of a gun. THE COURT: That is like saying if there was another body in the closet he would lie about that, too. There has to be some tiny scintilla of evidence. If he had a stash of dynamite hidden in the—you can ask him if he knows it is illegal that he had dynamite.

If you are saying when he took that gun off the guy. [MR. HALL’S COUNSEL]: I’m saying he had the gun beforehand. ¹²⁹ THE COURT: I think you can ask him if he had a gun or not, but that’s it. [MR. HALL’S COUNSEL]: Okay. The State argues that the issue is not preserved for appeal because the defense did not attempt to introduce Mr. Clark’s prior conviction at the relevant time.

Although it is a close call, we disagree. The court ruled categorically that “[manslaughter] is neither an infamous crime, nor a crime that would bear on credibility. The law says you can’t [introduce] it” and then prohibited Mr. Hall altogether from cross-examining Ms. Ray and Mr. Clark about their knowledge of the conviction or whether they knew that Mr. Clark was prohibited from possessing a gun. The State contends that the defense was required to offer the evidence again or object further to the court’s ruling, but there would have been no point—the court’s ruling flowed from its all-or-nothing view that the manslaughter conviction was not fair game for cross.

The State is right that an objection normally is expected each time the excluded evidence would be offered. But that principle is meant to guard against contextual sandbagging, to allow the trial court an opportunity to consider whether the evidence offered and testimony elicited since an earlier ruling supports its decision or compels a change. In this instance, no testimony or evidence could have altered the court’s ruling or the context in which the court made it—the decision was final and purely legal, and the objection to that ruling preserved under the circumstances. We find the reasoning in Prout v. State, 311 Md. 348, 358 , 535 A.2d 445 (1988), 2 abrogated on other grounds as recognized in Beales v. State, 329 Md. 263, 269 , 619 A.2d 105 (1993), ¹³⁰ instructive here.

In that case, the Court of Appeals held that a trial court’s ruling on a motion in limine to exclude evidence of a witness’s prior conviction for impeachment purposes itself preserved the issue for appeal because that in limine ruling was intended to be a final ruling on the matter. The trial court ruled that the witness’s solicitation and prostitution convictions were inadmissible for impeachment purposes, and then instructed defense counsel to not ask the witness any questions regarding them. Id. The trial court’s decision here was equally final: as in Prout , the trial court ruled that Mr. Clark’s manslaughter conviction was not an impeachable offense because it was neither an infamous crime nor a crime that bore on credibility, and then prohibited defense counsel from inquiring about it or its consequences.

Accordingly, we conclude that the ruling was intended to be the final word on the matter and no further objections or attempts to offer the evidence again by defense counsels were necessary. “To require defense counsel, under these circumstances, to make a more specific proffer or to offer the evidence again during the trial in order to preserve the issue for appellate review is unwarranted and would unduly interfere with the orderly progression of the trial.” Simmons v. State, 313 Md. 33, 38 , 542 A.2d 1258 (1988). We also disagree that Messrs. Cummings and Lubin failed to preserve the issue for appellate review because their counsel neither joined in Mr. Hall’s counsel’s preliminary effort to introduce the prior convictions nor objected to the court’s decision to preclude it. Mr. Hall’s counsel stated specifically that it was “our” (the defense’s) theory that Ms. Ray and Mr. Clark were lying about having a gun because they knew that Mr. Clark’s prior conviction prohibited him from possessing one.

And although only Mr. Hall’s counsel initially addressed the prior conviction, the State included the entire defense when it suggested to the court that “they should be prevented from mentioning it.” Mr. Lubin’s counsel attempted to explain to the court how asking Mr. Clark about the prior conviction addressed Mr. Clark’s motive to lie. Ultimately, Messrs. Cummings and Lubin were bound by the same rulings precluding ¹³¹ cross-examination with Mr. Clark’s prior manslaughter conviction as Mr. Hall, and were left with no other option but to comply with those rulings. Additional objections might have eliminated any doubt, but given the categorical nature of the court’s ruling, we find the issue preserved. 2.

The court erred in precluding the defense from introducing Mr. Clark’s prior manslaughter conviction for impeachment. On the merits, Mr. Clark’s manslaughter conviction was fair game for cross. Maryland Rule 5-609 allows impeachment with convictions for crimes that are infamous or that bear on the witness’s credibility: (a) Generally. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during examination of the witness, but only if (1) the crime was an infamous crime or other crime relevant to the witness’s credibility and (2) the court determines that the probative value of admitting this evidence outweighs the danger of unfair prejudice to the witness (b) Time Limit.

Evidence of a conviction is not admissible under this Rule if a period of more than 15 years has elapsed since the date of the conviction. Courts undertake a three-part analysis when determining whether to admit prior convictions under Rule 5-609: First, subsection (a) sets forth the “eligible universe” for what convictions may be used to impeach a witness’s credibility. This universe consists of two categories: (1) “infamous crimes” and (2) “other crimes relevant to the witness’s credibility.” Infamous crimes include treason, common law felonies, and other offenses classified generally as crimen falsi If a crime does not fall within one of the two categories, then it is inadmissible and the analysis ends. This threshold question of whether or not a crime bears upon credibility is a matter of law.

If a crime falls within one of the two categories in the eligible universe, then the second ¹³² step is for the proponent to establish that the conviction was not more than 15 years old, that it was not reversed on appeal, and that it was not the subject of a pardon or a pending appeal. Finally, in order to admit a prior conviction for impeachment purposes, the trial court must determine that the probative value of the prior conviction outweighs the danger of unfair prejudice to the witness or objecting party. This third step is clearly a matter of trial court discretion. State v. Westpoint, 404 Md. 455, 477-78 , 947 A.2d 519 (2008) (emphasis added) (citation omitted).

The State concedes, correctly, that manslaughter is an infamous crime. See Hairston v. State, 68 Md.App. 230, 235 , 511 A.2d 73 (1986) (“Because manslaughter is a felony, it is necessarily an infamous crime.” (citations omitted)). It responds by