Jenkins v. State

DEBORAH S. EYLER, J. A jury in the Circuit Court for Montgomery County convicted Marvin Jenkins, the appellant, of second degree murder and use of a handgun in the commission of a crime of violence in the shooting death of Steven Dorsey, Jr. The appellant also was convicted of attempted first degree murder, attempted second degree murder, and first degree assault on Michael Clark, who was with Dorsey when he was shot. The court sentenced the appellant to a term of thirty years imprisonment for second degree murder; a consecutive ten-year term for use of a handgun in the commission of a crime of violence; a consecutive twenty-year term for attempted first degree murder; and a concurrent twenty-year term for first degree assault. The court merged the attempted second degree murder conviction. ⁹⁵ On appeal, the appellant presents five questions for review, which we have rephrased: I. Did the trial court err in denying the appellant’s motion for new trial filed, inter alia, on the ground of an improper contact between a State’s witness and a juror during the trial?

II

Did the trial court err in admitting into evidence certain statements made in the presence of witness Alfred Smith?

III

Did the motion court err in denying the appellant’s motion to suppress evidence?

IV

Did the sentencing court err by not merging the conviction for assault with the conviction for attempted first degree murder? V. Was the evidence sufficient to sustain the appellant’s convictions? For the following reasons, we shall affirm the judgments of the circuit court, except that we shall vacate the appellant’s sentence for first degree assault. FACTS AND PROCEEDINGS Steven Dorsey, Jr., and Michael Clark spent most of the day and evening of April 13, 2000, together, smoking PCP and marijuana.

By late that night, they were on Spring Street, near its intersection with Douglas Street, in the Lincoln Park area of Montgomery County. Clark saw two men walking toward them. He did not know or recognize either man. One of the men, later identified as David Barnett, addressed Dorsey, saying, “Just the nigger I’m looking for.” Dorsey responded, “I still got that for you.” According to Clark, one man walked over to a car while the other man, a “dark skinned guy[,] ... just started shooting.” Clark fled.

Dorsey started running in the other direction. As Clark was running, he heard five or six shots, and realized that Dorsey was no longer running. Clark ran to a nearby home and banged on the door. When no one answered, he ⁹⁶ returned to the scene of the shooting and found Dorsey lying on the ground.

The police arrived a few minutes later. The appellant and Barnett were charged with numerous crimes arising out of the shooting incident. They were tried separately. At the appellant’s trial, Clark testified for the State, and identified the appellant as the man who had walked over to the car, while the other man started shooting.

Clark further testified that the appellant did not say anything during the encounter. Additional facts will be recited as pertinent to our discussion of the issues. DISCUSSION I The appellant’s trial started on March 19, 2001, and concluded on March 30, 2001. Jury selection took place all of March 19 and part of March 20.

After the State and the defense had chosen jurors and indicated satisfaction with the panel, but before the jurors were sworn, the court told the jurors, inter alia: [Y]ou must do everything reasonable within your power to avoid contact with any of the witnesses, parties, or persons you see in close contact with them outside of the courtroom. Don’t let anybody speak to you about this case, and don’t speak to anyone about it yourself.... The jurors were sworn and the court then gave them detailed general instructions to follow during the trial. Those instructions included the following: Do not have any contact outside the courtroom with any of the parties, witnesses, or lawyers....

If anything does occur, contrary to these instructions, please write a note as soon as possible. Do not discuss it with any other member of the jury, and give it to my law clerk, Ryan, and he will bring it to my attention. ⁹⁷ Again, upon any recess, as I mentioned, do not discuss the case with anyone or let anyone discuss the case with you or in your presence.... In addition, please avoid any contact with the parties, lawyers, and witnesses involved in this case. On March 21, the State called Detective Patricia Pikulski as a witness.

Pikulski, who is assigned to the homicide unit of the Montgomery County Police Department, was one of the officers who responded to the scene of the shooting. She testified that she arrived at the scene at about 12:20 a.m. About ten minutes later, she interviewed Clark, who was sitting in the back seat of a police cruiser. The interview lasted about 45 minutes.

During the interview, Clark described the two men involved in the shooting. Pikulski testified about the descriptions Clark gave her of the two men. During her interview of Clark, Pikulski took notes. On cross-examination, her notes were marked as a defense exhibit, and she was questioned about them.

On re-direct examination, Pikulski read her notes into evidence. At the conclusion of Pikulski’s testimony, the court reminded her that she was under subpoena. The court stated, “There is a rule on witnesses so don’t discuss your testimony with any other witness or permit any other witness to discuss their testimony with you. We will notify you if we need you at a future time.” On April 4, 2001, five days after the jury returned its verdict, Pikulski went to the State’s Attorney’s Office on an unrelated matter.

She saw Deborah Armstrong, Esq., the prosecutor in the appellant’s case, and walked over to say hello. In the course of their conversation, Pikulski commented to Armstrong that while the trial had been in progress, she had had an inadvertent encounter with one of the jurors, Bruce McDonald, at a religious retreat held in Virginia. Upon learning this information, Armstrong immediately contacted the court and defense counsel and requested an emergency hearing. The emergency hearing was held the next day, April 5, 2001.

At the hearing, Armstrong disclosed ⁹⁸ what Pikulski had told her, and asked the court to summons McDonald to court so he could be questioned about his contact with Pikulski during the trial. After conferring with counsel, the court scheduled an evidentiary hearing for April 19, 2001. On April 9, 2001, the appellant filed a ten-day motion for new trial, under Md. Rule 4-331(a). He asserted as one basis for the motion that there had been an improper contact between Pikulski and McDonald during the trial that had prejudiced him and deprived him of his Sixth Amendment right to a fair trial.

Specifically, the appellant argued that the contact had enhanced the credibility of the police in McDonald’s eyes, when the defense was challenging police credibility with assertions that the police had conducted a sloppy investigation and had ignored key evidence favorable to the appellant. The appellant also argued that Pikulski and McDonald had deprived him of his right to know about the contact during the trial, by not bringing it to the court’s attention during trial, in contravention of the court’s instructions. At the April 19, 2001 hearing, Pikulski testified as an adverse witness, called by the appellant. McDonald was called and examined by the court.

Pikulski stated that on Friday and Saturday, March 23 and 24, 2001, she attended a religious retreat in Virginia. The topic of the retreat was “Contemplation, Silence, Beauty and the Holy.” She arrived at the retreat location at about 6:50 p.m. on March 23. About ten other people were present. Shortly after arriving, she started talking to a man named Bruce McDonald.

She did not recognize him as someone she knew or ever had had contact with. After several minutes, McDonald walked away. About ten minutes later, McDonald returned to where Pi-kulski was standing and said either that he “was” or “is” “on the jury.” Thinking he had used the word “was,” Pikulski responded, “Oh, you’re one of the ones that convicted him?” McDonald replied, “I can’t talk about it.” Pikulski thought that was odd, and then asked whether McDonald was on the ⁹⁹ jury in the trial that was “right now?” McDonald responded, “Yes.” Pikulski then said, “You’re right. We can’t talk about this.” The people attending the retreat went home Friday night and returned Saturday morning.

The retreat was supposed to last until 7:00 p.m. on Saturday, but concluded early, at 1:30 p.m. McDonald and Pikulski had a brief discussion, and McDonald suggested they have lunch together. She agreed and the two walked to a restaurant a few doors down from where the retreat had been held. At lunch, Pikulski and McDonald talked about their families and discussed other personal topics.

Pikulski learned that McDonald was a volunteer at the soup kitchen where she attends Sunday school. They did not talk about the appellant’s case and Pikulski did not discuss her work or the police force in general. Pikulski and McDonald paid for their own meals. Pikulski then drove McDonald to his car.

She was driving her own personal car, not a police car. On Monday, March 26, 2001, Pikulski told Detective Kenneth Penrod, her superior, about her encounter with McDonald at the retreat. She did not contact the State’s Attorney’s Office because she did not think there was any problem with her talking to a juror in a case that was in trial, so long as they did not discuss the case itself. Pikulski acknowledged that even though she already had testified in the appellant’s trial by the time of the retreat, she was under subpoena and could have been recalled to the stand.

McDonald testified that he attended the religious retreat in Virginia on March 23 and 24, 2001, with about 25 to 30 other people. On the evening of March 23, as the attendees were getting acquainted, he saw Pikulski and recognized her as a detective who had testified at the trial. At first, he walked away from her, because he wasn’t sure what he should do. He then approached the detective and said, “Look, you don’t know who I am, but Pm a juror in a case that you testified in, and I can’t have any dealings with you.” Pikulski responded, “Oh, did you, you know, did you find him guilty?” Taking Pikul- ¹⁰⁰ ski’s remark to mean she thought he was a juror in a trial that had ended, i.e., not in the appellant’s trial, McDonald replied that the trial still was in progress.

McDonald and Pikulski did not discuss the matter any more. They did discuss general topics. The next day, they sat next to each other during the seminar, not by design, and then went to lunch together. They were alone for most of the meal, although at some point a friend of McDonald’s entered the restaurant and joined them, for a short time.

During lunch, Pikulski and McDonald discussed McDonald’s work, which is in environmental matters, and Pikulski commented that her son was in the process of obtaining a degree in chemistry, a field he had become interested in by virtue of his interest in the environment. When their lunch was over, Pikulski offered to drop McDonald off at a car dealership where his car was being repaired. He accepted her offer. The dealership was about a half mile from the restaurant.

After taking McDonald to his car, Pikulski went on her way, and the two had no more contact. The court did not ask McDonald any questions about why he did not bring his contact with Pikulski to the court’s attention, during the trial; and the court was not asked by either counsel to make any such inquiry of McDonald. The State filed an opposition to the appellant’s motion for new trial. The court held a hearing on the motion on June 20, 2001.

On July 16, 2001, the court issued a written opinion denying the motion. The court found that the contact between Pikulski and McDonald had occurred inadvertently, not intentionally, at least initially, but that it nevertheless was contrary to its instructions and therefore was improper. Applying the test articulated in Allen v. State, 89 Md.App. 25 , 597 A.2d 489 (1991), the court then analyzed whether the improper contact had prejudiced the appellant’s defense. ¹⁰¹ The court concluded that, even if it presumed prejudice from the improper contact, the State had rebutted the presumption, and “[the appellant’s] right to a fair trial and right to a fair and impartial juror, was not in any way impaired ... by the contact that occurred.” The bases for the court’s ruling on the issue of prejudice were as follows. The court found accurate and credible McDonald’s testimony about the substance and nature of his contact with Pikulski.

It concluded that the only communication between the two that possibly was about the trial was Pikulski’s question (“did you find him guilty?”) that McDonald took as a reference to another trial, not to the appellant’s trial. The court found that Pikulski’s involvement as a witness in the appellant’s case had been minimal, and therefore it was “extremely unlikely that Mr. McDonald could or would have assumed that the ‘other trial’ [the detective was referring to] was that of [the appellant’s] co-defendant, Mr. Barnett.” (Emphasis in original.) The court further found that even if McDonald had assumed that the “other trial” was Barnett’s trial, Pikulski’s question would not have harmed the appellant in his defense, because the appellant’s defense was predicated on Barnett’s having been the shooter. Indeed, part of the defense theory was that the appellant was a victim of mistaken identity and that Barnett had committed the murder with his (Barnett’s) brother, not with the appellant. Barnett’s having been found guilty was consistent with that theory.

The court also found that while the contact between Pikulski and McDonald had made Pikulski more credible in McDonald’s eyes, the enhanced credibility “would have worked in the [appellant’s] favor.” Not only did the defense not challenge Pikulski’s credibility at trial, it adopted her testimony in several respects and attempted to use it to discredit Michael Clark, the State’s primary witness. Finally, the court found that the improper contact had not caused McDonald to have a more positive view of other police detectives called by the State and attacked by the defense for conducting a sloppy investigation. The court concluded that ¹⁰² even if McDonald’s assessment of Pikulski’s credibility had been enhanced by their contact it did not logically follow that McDonald would have transferred his positive credibility assessment of Pikulski to the other police detective witnesses. 1 On appeal, the appellant contends that the trial court committed legal error in denying his motion for new trial. He maintains that the improper contact between Pikulski and McDonald deprived him of his due process right to have his guilt or innocence “determined by an impartial fact finder who depends solely on the evidence and argument introduced in open court.” Allen v. State, supra, 89 Md.App. at 42 , 597 A.2d 489 .

He argues that prejudice was “inherent” in the improper contact and even though Pikulski and McDonald each testified to not having discussed the case, the substantial nature of their contact at the religious retreat gave rise to a “probability of prejudice” to McDonald’s ability to fairly evaluate the case. The appellant asserts the improper contact heightened Pikul-ski’s credibility in McDonald’s eyes, caused him to have an “allegiance” to her, and had the “spillover effect” of also enhancing McDonald’s credibility assessment of the entire police department. He maintains that under the circumstances, and given that one of his defense theories was that the police had been sloppy in their investigation, the trial court should have found that the State did not rebut the presumption of prejudice, as a matter of law. The appellant further argues that Pikulski’s inquiry to McDonald (“Oh you’re one of the ones that convicted him?”) could have led McDonald “to believe that Pikulski believed that the trial had finished and that she had expected [the appellant] to be convicted.” He asserts that this remark could ¹⁰³ have improperly influenced McDonald to conclude that the appellant in fact was guilty of the crimes charged, thereby making McDonald a partial juror; and that for this reason, the trial court was required to grant a new trial.

Finally, the appellant maintains that the improper contact “cast[ ] the shadow of the appearance of impropriety onto the entire judicial system.” He points to two articles in local newspapers published soon after he filed his motion for new trial documenting the encounter between McDonald and Pi-kulski, and argues that the articles evidence the public’s displeasure at such an improper contact having occurred. He maintains that the potential for damage to the community’s confidence in “the system” was such as to have required the granting of a new trial. The State counters that even presuming prejudice from the improper contact between Pikulski and McDonald, the presumption was rebuttable and the trial court properly found that the State overcame the presumption by showing that the contact was “extremely limited and completely innocuous.” It also maintains that even if Pikulski’s credibility was enhanced in McDonald’s eyes as a result of the improper contact, the trial court reasonably concluded that no prejudice had resulted to the appellant because, in advancing his defense theory, the appellant relied on Pikulski’s testimony. In addition, the State asserts that the trial court properly found it was unlikely that the enhancement of Pikulski’s credibility in McDonald’s eyes created a “spillover effect” of enhancing his credibility assessment of the entire police department.

As for the appellant’s public perception argument, the State responds that the issue was not raised or decided below and lacks merit in any event. In their briefs, the parties maintain that under Merritt v. State, 367 Md. 17 , 785 A.2d 756 (2001), the proper standard of review of this issue is “harmless error.” In Merritt , the Court of Appeals explained: [Wjhen an alleged error is committed during the trial, when the losing party or that party’s counsel, without fault, does ¹⁰⁴ not discover the alleged error during the trial, and when the issue is then raised by a motion for a new trial, [the denial of that motion is reviewed] under a standard of whether the denial was erroneous.... [W]here [the court] concluded] that error did occur, the matter of prejudice [is]' received under the harmless standard of Dorsey v. State, 276 Md. 638 , 350 A.2d 665 (1976).” 2 Id. at 30-31 , 785 A.2d 756 . In Merritt , the defendant was convicted by a jury of several offenses arising from a murder. Two days after the verdict, the parties discovered the court clerk had mistakenly marked several documents not admitted into evidence and sent them to the jury room during deliberations.

On the basis of that error, the defendant filed a motion for new trial. The court denied the motion. The Court of Appeals reversed on appeal, holding that the presence of the unadmitted exhibits in the jury room likely caused prejudice to the defendant. In advancing its argument on appeal, the State maintained that the trial court’s decision to deny the motion for new trial was subject to reversal only for an abuse of discretion.

The Court “flatly rejected]” that' argument. In doing so, it discussed at length the evolution of the standard of review for a decision denying a motion for new trial. The Court noted that while such a decision ordinarily is reviewed for abuse of discretion, “there are situations in which there is virtually no discretion to deny a new trial.” Id. at 29 , 785 A.2d 756 . Referring to its decision in Buck v. Cam’s Broadloom Rugs, Inc., 328 Md. 51 , 612 A.2d 1294 (1992), the Court explained that a trial judge has little or no discretion to deny a motion ¹⁰⁵ for new trial when, inter alia, “competent extrinsic evidence discloses that a jury’s consideration of the case was seriously distorted by evidence that should not have been before the jury....” Id. at 30, 785 A.2d 756 (citing Buck v. Cam’s Broadloom Rugs, supra, 328 Md. at 58-59 , 612 A.2d 1294 (referring to Wernsing v. General Motors Carp., 298 Md. 406, 420 , 470 A.2d 802 (1984))). 3 The Court went on to reason that when the losing party, through no fault of his own, does not discover an error until after trial, the proper standard for reviewing the denial of a motion for new trial based on that error is harmless error, not abuse of discretion.

Merritt v. State, supra, 367 Md. at 30-31 , 785 A.2d 756 . The Court explained that the “substance and result of the clerk’s action was essentially the same as the action of a trial judge in erroneously admitting an exhibit into evidence. The only real difference would be that, in the latter situation, defense counsel would have been aware of the action and would have had an opportunity to object.” Id. at 32, 785 A.2d 756 . It further reasoned that because the effect of the court clerk’s action was the same as if the trial court had committed legal error in improperly admitting evidence during trial, a review of the denial of the motion for new trial properly would be conducted for legal error, not for an abuse of discretion.

The holding in Memtt does not mean that the standard of review of the trial court’s decision to deny the appellant’s motion for new trial in this case is “harmless error” instead of “abuse of discretion.” To be sure, in both cases, the problem at issue was not discovered until after the verdict had been ¹⁰⁶ rendered, through no fault of either party. The similarities end there, however. In Merritt , as the Court explained, the error by the court clerk was the equivalent of the trial court’s having committed legal error — not abusing its exercise of discretion — by admitting plainly inadmissible evidence. If the error had been known to the parties when it happened, and had generated an objection, a decision by the trial court to allow the material to go to the jury nevertheless would have been reviewed on appeal for error, not for abuse of discretion.

The fact that that decision ultimately was made by the trial court in the context of a motion for new trial, because the problem was not discovered when it happened, did not convert the standard for reviewing the decision to “abuse of discretion.” In the case at bar, if the contact between Pikulski and McDonald had become known to the parties soon after it happened, while the trial was still in progress, the appellant could have moved the court to remove McDonald from the jury and replace him with an alternate juror, 4 or could have moved for a mistrial. Either decision — whether to remove McDonald or whether to grant a mistrial — would have been a discretionary call by the trial court based upon its assessment of whether the improper contact had had a prejudicial impact on the appellant’s right to a fair trial. “The trial judge’s discretion extends to matters concerning juror misconduct or other such irregularity in the conduct of others which may affect the jury.” Eades v. State, 75 Md.App. 411, 420 , 541 A.2d 1001 (1988) (citing Walker v. Hall, 34 Md.App. 571, 591 , 369 A.2d 105 (1977)). “Because a trial judge is in the best position to evaluate whether or not a defendant’s right to an impartial jury has been compromised, an appellate court will not disturb the trial court’s decision on a motion for mistrial or a new trial absent a clear abuse of discretion.” Allen v. State, supra, 89 Md.App. at 42-43 , 597 A.2d 489 . See Wright v. State, 312 Md. 648, 654 , 541 A.2d 988 (1988); Hunt v. State, ¹⁰⁷ 312 Md. 494, 500-01 , 540 A.2d 1125 (1988); Wilhelm v. State, 272 Md. 404, 429 , 326 A.2d 707 (1974). A ruling during trial on whether to remove McDonald as a juror or to grant a mistrial due to the improper contact would have been an exercise in judicial discretion subject to review for abuse.

A ruling on a motion for new trial under Rule 4-331(a) also is a matter of discretion subject to review for abuse. Accordingly, we shall review the trial court’s ruling denying the motion for new trial filed by the appellant on the basis of the improper contact under the abuse of discretion standard, not under the “harmless error” standard. We now turn to the merits of the appellant’s first issue. In a state court criminal proceeding, the Fourteenth Amendment guarantees the accused due process, including the right to be tried by a fair and impartial trier of fact.

Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 551 , 96 S.Ct. 2791 , 49 L.Ed.2d 683 (1976); Turner v. Louisiana, 379 U.S. 466, 471-72 , 85 S.Ct. 546 , 13 L.Ed.2d 424 (1965); Eades v. State, supra, 75 Md.App. at 420 , 541 A.2d 1001 . To be fair and impartial, the trier of fact must base its decision in the case on the evidence admitted at trial. Irvin v. Dowd, 366 U.S. 717, 722 , 81 S.Ct. 1639 , 6 L.Ed.2d 751 (1961); Ware v. State, 360 Md. 650, 669 , 759 A.2d 764 (2000); Calhoun v. State, 297 Md. 563, 580 , 468 A.2d 45 (1983). In a jury trial, when a private communication takes place between a third party and a juror, it raises a concern that the juror may reach a verdict not on the basis of the evidence, but on the basis of the communication.

Eades v. State, supra, 75 Md.App. at 420 , 541 A.2d 1001 . See also United States v. Day, 830 F.2d 1099, 1103 (10th Cir.1987); Owen v. Duckworth, 727 F.2d 643, 646 (7th Cir.1984). Thus, “private communications between jurors and third persons are absolutely ‘forbidden’ and require the court to order a new trial ‘unless their harmlessness is made to appear.’ ” Eades v. State, 75 Md.App. at 420-21 , 541 A.2d 1001 (citing Mattox v. United States, 146 U.S. 140, 150 , 13 S.Ct. 50 , 36 L.Ed. 917 (1892)). ¹⁰⁸ “[In] determining whether [an instance of improper] jury contact is prejudicial, a trial court must balance the ‘probability of prejudice from the face of the extraneous matter in relation to the circumstances of the particular case.’ ” Allen v. State, supra, 89 Md.App. at 46 , 597 A.2d 489 (citing Harford Sands, Inc. v. Groft, 320 Md. 136, 138-39 , 577 A.2d 7 (1990) (quoting Wernsing v. General Motors Corp., supra, 298 Md. at 411 , 470 A.2d 802 )). See also Aron v. Brock, 118 Md.App. 475, 525 , 703 A.2d 208 (1997). “Where the record affirmatively shows prejudice by improper communications, the error requires reversal; but where the record affirmatively shows no prejudice, reversal is not required.” Allen v. State, supra, 89 Md.App. at 46 , 597 A.2d 489 ; Aron v. Brock, supra, 118 Md.App. at 525 , 703 A.2d 208 .

See Eades v. State, supra, 75 Md.App. at 422-23 , 541 A.2d 1001 . On the other hand, when the record is silent with respect to whether the juror contact was prejudicial, “prejudice is presumed, and the burden falls on the state to rebut the presumption of harm.” Allen v. State, supra, 89 Md.App. at 47 , 597 A.2d 489 (footnote omitted). See Remmer v. United States, 347 U.S. 227, 229 , 74 S.Ct. 450 , 98 L.Ed. 654 (1954) (“In a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about a matter pending. before a jury is, for obvious reasons, deemed presumptively prejudicial.... The presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant.”). “The decision as to whether the State has met this burden is committed to the trial court’s discretion, and ... will be reversed only upon a finding of abuse of that discretion.” Allen v. State, supra, 89 Md.App. at 47 , 597 A.2d 489 .

The State argues that recent decisions of the Supreme Court and other federal courts establish that prejudice is no longer presumed in every instance of improper jury contact. Indeed, as this Court noted in Eades v. State, the Supreme Court’s decision in Smith v. Phillips, 455 U.S. 209 , 102 S.Ct. 940 , 71 L.Ed.2d 78 (1982), “has cast some doubt on Remmer’s ¹⁰⁹ presumption of prejudice arising from any private communication with a juror about a matter pending before the jury.” 75 Md.App. at 421 , 541 A.2d 1001 . In Smith , the Supreme Court refused to presume prejudice in a state court murder trial when during the trial a sitting juror applied for a job as an investigator in the prosecutor’s office. The Court noted that “due process does not require a new trial every time a juror has been placed in a potentially compromising situation.” Smith v. Phillips, supra, 455 U.S. at 217 , 102 S.Ct. 940 .

Rather, “[d]ue process means ... a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen.” Id. The court held that a post-trial hearing conducted by the trial court, like the one ordered in Remmer , was “sufficient to decide allegations of juror partiality....” Id. at 218, 102 S.Ct. 940 . Despite the holding in Smith , this Court in Eades “as-sumefd]” that the presumption of prejudice from contact with a juror during trial, under Remmer , remained the law. 75 Md.App. at 423 , 541 A.2d 1001 . Several years later, in Allen , we again favorably cited Remmer for the proposition that prejudice to the defendant is to be presumed when there has been an extrajudicial juror contact.

Allen v. State, supra, 89 Md.App. at 47 , 597 A.2d 489 . In the case at bar, the State points out that since Eades and Allen were decided, the presumption has been further eroded by more recent federal decisions. See United States v. Olano, 507 U.S. 725, 739 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993) (“a presumption of prejudice as opposed to a specific analysis does not change the ultimate inquiry: Did the intrusion [by a third party on the jury] affect the jury’s deliberations and thereby its verdict?”); United States v. Sylvester, 143 F.3d 923, 934 (5th Cir.1998) (“the Remmer presumption of prejudice cannot survive Phillips and Olano .... [0]nly when the court determines that prejudice is likely should the government be required to prove its absence. This rule comports with our long-standing recognition of the trial court’s considerable discretion in investigating and resolving charges of jury tampering”) (emphasis added). ¹¹⁰ While these recent decisions make questionable the continuing vitality of the Remmer presumption of prejudice, we need not decide in the instant case whether presumed prejudice remains the proper standard in Maryland.

Here, the trial court exercised its discretion to deny the new trial motion on a finding that the State had rebutted any presumed prejudice to the appellant from the improper contact. The parties do not dispute that the contact between Pikulski and McDonald was improper. The contact was contrary to the trial court’s instructions to the jurors forbidding them from interacting with third parties during the trial. McDonald’s initial contact with Pikulski was inadvertent, but his subsequent contact with her, including having lunch and discussing their personal lives, was not.

While the trial court credited McDonald’s testimony that he and Pikulski did not discuss the case, the fact that they continued their contact beyond the brief communication in which they realized their predicament suggests the potential for prejudice. Indeed, the appellant cites several cases in which courts found contacts between jurors and witnesses prejudicial even in the absence of evidence that the contacts included discussions of the case. See Turner v. Louisiana, supra, 379 U.S. at 473 , 85 S.Ct. 546 (“even if it could be assumed that the deputies never did discuss the case directly with any members of the jury, it would be blinking reality not to recognize the extreme prejudice inherent in this continual association throughout the trial between the jurors and these two key witnesses for the prosecution.”); United States v. Marine, 84 F.Supp. 785, 787 (D.Del.1949) (new trial warranted when juror and prosecution witness ate lunch together during the trial, even when it was uncertain that the two had discussed the case); Miles v. State, 261 Ala. 670, 675 , 75 So.2d 479, 484 (Ala.1954) (defendant was entitled to a new trial “free from probability of injury” after three police officers who were witnesses for the prosecution accompanied the jury to and from lunch during the trial, even though there had been no discussion of the case); Kelley v. State, 555 N.E.2d 140, 142 (Ind.1990) (error in failing to grant motion for mistrial after it was discovered that a witness for ¹¹¹ the prosecution had sat with three of the six jurors during a lunch recess); Romo v. State, 500 P.2d 678, 680 (Wyo.1972) (holding that the trial court should have granted the defendant’s motion for mistrial after it was revealed that a police officer who also was a prosecution witness had sat with several jurors during a lunch break, even though the witness testified that he did not discuss the “business” of the case with the jurors). As these cases recognize, however, when an improper contact has occurred, and when prejudice from the contact is presumed, the presumption is rebuttable.

Indeed, in Fades and Allen , this Court concluded that “the inquiry of the trial court and the juror’s response thereto effectively overcame the presumption operating in Lthe] appellant’s favor.” Eades v. State, supra, 75 Md.App. at 423-24 , 541 A.2d 1001 . See Allen v. State, supra, 89 Md.App. at 48 , 597 A.2d 489 . In the case at bar, the trial court heard testimony from Pikulski and McDonald about their contact during the trial and on the basis of that evidence made factual findings and ultimately concluded that the State had shown by a preponderance of the evidence that the improper contact had not prejudiced the appellant’s right to a fair trial by an impartial jury. In other words, the trial court found that assuming a presumption of prejudice from the improper contact, the State met its burden of rebutting the presumption by showing that the contact did not harm the appellant’s due process rights.

Our review of the record reveals that the trial court’s factual findings concerning the issue of prejudice were supported by competent evidence and were not clearly erroneous; that its second-level factual finding that the appellant’s due process rights were not harmed by the contact likewise was supported by the evidence and was based in reason; and that its decision to exercise discretion to deny the appellant’s motion for new trial was sound and not abusive. As we have noted, the trial court agreed with the appellant that the improper contact resulted in McDonald’s having an “enhanced view of [Pikulski’s] credibility.” The trial court ¹¹² concluded, however, that given the appellant’s theories of defense, McDonald’s positive view of Pikulski’s credibility was not harmful to him; on the contrary, it was helpful. The trial judge observed: “Not only did the defense not contradict Detective Pikulski’s testimony, to the contrary, they embraced it in an effort to discredit the testimony of one of the State’s key witnesses.” The record supports this finding. As we noted above, the appellant’s primary defense theory was misidentification.

The State’s star witness, Michael Clark, was an eyewitness to Dorsey’s murder and identified the appellant as being present with Barnett at the scene. -The defense sought to use Pikul-ski’s testimony to discredit Clark by showing that the version of events he told her on the night of the shooting was at odds with several later versions he gave and with his trial testimony. In closing argument, in her effort to persuade the jury to reject Clark’s téstimony, defense counsel urged the jury to accept Pikulski’s testimony as accurate and credible: Remember poor Detective Pikulski, who tried very very hard to get as much out of Michael Clark as she could and Michael Clark sat on this stand and he told you that he told Detective Pikulski that just after giving a forty-five minute interview with her, and a five page statement, that everything he had told her was wrong. That defies logic and common sense. Detective Pikulski, I would suggest, is an experienced honest person and testified truthfully and that [she had] no motive, no motive whatsoever to be other than truthful to you.

Had Michael Clark told her that, she would have told you that. (Emphasis added.) In Allen v. State, supra, we explained that “a trial court may reasonably find that extrinsic evidence that actually assists a defendant’s case is not prejudicial to him and, therefore, not sufficient evidence upon which to direct a mistrial.” 89 Md.App. at 49 , 597 A.2d 489 . See, e.g., Carpenter v. United States, 475 A.2d 369, 376 (D.C.App.1984); State v. Olin, 103 ¹¹³ Idaho 391, 399, 648 P.2d 203, 211 (1982); State v. Bonaparte, 222 Neb. 469, 472 , 384 N.W.2d 304, 306 (1986). In Allen , brothers Peter and David Allen, along with another co-defendant, were tried on drug kingpin distribution and conspiracy charges.

During jury deliberations, David Allen had breakfast with a dismissed alternate juror who then related to one of the sitting jurors that David had admitted selling drugs but had denied selling them for his brother and co-defendant, Peter. The judge conducted a voir dire of the juror who received the ex parte information. The defendants moved for a mistrial on the basis of the improper juror conduct. The trial court denied the motion and without informing the rest of the jury about the ex parte communications, instructed the jury to continue its deliberations.

The jury returned with a verdict that day, finding Peter and David guilty on all counts, and their co-defendant not guilty on all counts. On appeal, both brothers argued that the trial court had erred in denying their motion for a mistrial. We affirmed, holding, inter alia, that the contact could not have prejudiced Peter because the statement made to the sitting juror “exculpated rather than inculpated [him].” Allen v. State, supra, 89 Md.App. at 49 , 597 A.2d 489 . 5 By the same token, in this case, McDonald’s enhanced view of Pikulski’s credibility likely would have positively influenced his view of the defense’s theory of the case. Pikulski’s testimony was that Clark give her a statement explaining, inter alia, that he and Dorsey had spent the afternoon of April 13, 2000, together, that before the shooting they were on the street but not walking together, and that when the two approached Dorsey, words were spoken, but Clark could not hear them.

There was no indication from Pikulski that Clark told her or led her to think his statement was not an accurate version of the events. By contrast, Clark testified that he ¹¹⁴ gave Pikulski a version of events that was inaccurate, because he was scared and was high on drugs, and that after reciting the events, he told Pikulski his statement was inaccurate. The defense urged the jurors to believe Pikulski because believing her would lead them to conclude that Clark simply-made up different versions of the events of the night of the shooting, depending upon what was expedient and helpful to him, and that therefore nothing he said, including his in-court testimony, could be believed. Thus, it was reasonable for the trial court to conclude that, to the extent the jurors found Pikulski credible, it was more likely they would find the State’s star witness not credible, and hence more likely that they would find the appellant not guilty.

As we have explained, the trial court also rejected the appellant’s argument that McDonald’s positive credibility assessment of Pikulski based on their improper contact had prejudiced him by in turn enhancing his view of the entire police department. The court reasoned that the mere fact that McDonald may have been more inclined to believe Pikul-ski after spending time with her at the religious retreat did not reasonably support a finding that he would favor the police force’s version of how their investigation was conducted over the appellant’s. As the court pointed out, there was nothing about the nature of the contact between Pikulski and McDonald that would have led McDonald to view Pikulski as a representative of the entire police force or to generalize his view of her character to the police force as a whole. This reasoning is sound and supported by logic.

In addition, the appellant’s argument is belied by the strategy he followed at trial. As noted above, the defense urged the jurors to believe Pikulski’s testimony, apparently without any concern that their doing so would have the “spillover” effect of making the police force’s version of the investigation more believable than the appellant’s version. The defense would not have adopted a strategy to tout Pikulski’s credibility to the jury if the strategy was likely to harm its “sloppy police investigation” defense theory. ¹¹⁵ The trial court found no merit in the appellant’s argument that Pikulski’s remark to McDonald that “you’re one of the ones that convicted him” could have influenced him to think he (the appellant) was guilty of the crimes charged. McDonald’s testimony, credited by the court, was that when he approached Pikulski at the retreat and mentioned being a juror she did not seem to know, and he did not believe she knew, what case he was serving in.

That being the case, there would be no reason for McDonald to have thought Pikulski’s comment meant she thought, as the appellant puts it, that the appellant’s “trial had finished and that she had expected [him] to be convicted.” In this Court, the appellant asserts that the contact between Pikulski and McDonald was such that they formed a “spiritual/religious bond” that caused McDonald to feel, consciously or subconsciously, a “sense of loyalty” to Pikulski’s “side” of the case and that could have made him “fe[el] uncomfortable voting any way but ‘guilty.’ ” We note that the appellant did not present this argument in his motion for new trial or during the June 20, 2001 hearing on the motion. To the extent it was implicit in his more general argument about enhanced credibility, it also was implicitly rejected by the trial court. Again, the defense theory of the case was based in part on Pikulski’s testimony; therefore, although Pikulski was called to testify by the State, she was not a witness tied strongly to one “side” of the case. Moreover, the trial court found from competent and material evidence that Pikulski did not communicate to McDonald a belief that the appellant was guilty or an endorsement of the State’s case.

Finally, we agree with the State that the appellant did not preserve the argument that the trial court should have granted him a new trial to protect a positive public image for the criminal justice system. In his “Supplemental Memorandum and Request to Strike Testimony,” filed in the trial court on May 10, 2001, the appellant cited two newspaper articles about the case. Then, at the June 20, 2001 hearing on the motion ¹¹⁶ for new trial, the appellant suggested in argument to the court that McDonald may have read the articles and, realizing that “there was essentially an uproar over that type of contact during the course of trial between an agent of the State and a juror,” may have “attempt[ed] to minimize or disregard the comments by the detective.” At no point below did the appellant argue that public controversy or the public’s reaction over the contact between Pikulski and McDonald warranted granting a new trial. “Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court.” Md. Rule 8-131(a); see Walker v. State, 338 Md. 253, 262 , 658 A.2d 239 (1995). Even if this issue had been raised below, the appellant would fare no better.

To be sure, in a general sense, how the public perceives the criminal justice system affects whether defendants receive fair and impartial trials. See Young v. United States, 481 U.S. 787, 811-12 , 107 S.Ct. 2124 , 95 L.Ed.2d 740 (1987) (conduct of prosecutor); Jackson v. State, 364 Md. 192, 207 , 772 A.2d 273 (2001) (sentencing). We are dealing in this appeal with a particular defendant and a particular trial, however, and the specific question whether an instance of improper contact between a witness for the State and a juror, during the trial, was prejudicial. Again, even assuming prejudice from the improper contact, it was well within the discretion of the trial court to determine whether that prejudice was outweighed by countervailing evidence of lack of prejudice.

After hearing testimony from Pikulski and McDonald and considering the arguments presented by the parties, the trial court concluded that it was satisfied that the improper contact did not prejudice the appellant in his defense. We agree with the State that the factual findings on which this decision was based were not clearly erroneous and were supported by competent and material evidence. Accordingly, the trial court did not abuse its discretion in denying the appellant’s motion for new trial. ¹¹⁷ II. Alfred Smith was called to testify by the State.

The following took place before he took the stand: [DEFENSE COUNSEL]: Your Honor, [the appellant] has a fundamental right to confront the witnesses that the [S]tate intends to use against him in this criminal trial. It is apparent that the [S]tate intends to use Mr. Barnett against [the appellant] and it is apparent that the [S]tate is attempting to establish that Mr. Barnett’s purported attempt to purchase a handgun somehow implicates [the appellant] in the murder of Steven Dorsey. That much we know. * Jfc # sf« We cannot confront Mr. Barnett. It is essential for us to be able to do that because, as I proffered to the Court earlier, we have reason to believe, either, one, that this attempted purchase never occurred, or, two, if there was an attempt it was under circumstances that Barnett was not motivated to then murder Dorsey.

Not being able to cross-examine Barnett where the [S]tate is attempting to use that irreparably prejudices the trial in such a way that any attempt to cure it through limited [sic] instruction to the jury is unrealistic. * * $ * THE COURT: Let me see if I precisely'understand the piece of evidence we are talking about because you say it is being offered by way of motive. As I understand what the [S]tate seeks to introduce through this witness, Mr. Smith, is that the alleged co-defendant [Barnett] approached Mr. Smith three days before the shooting and asked to buy or offered to purchase a handgun or was looking to buy a handgun, correct? [THE STATE]: From the victim. THE COURT: From the victim and that is overheard by Mr. Smith. ¹¹⁸ [THE STATE]: Absolutely. THE COURT: And on the night in question, according to Mr. Clark, the victim makes a reference to I have that thing you are looking for. [THE STATE]: Correct.

THE COURT: Now aside from those two statements, when you say motive do you intend to try and show evidence that in the interim he had made statements that he was mad that the victim hadn’t gotten the gun yet, or is it simply trying to tie the statement of the night in question into the other statement? [THE STATE]: It is to tie the statement of the night in question to the earlier statement. Your Honor, also to establish sort of a causation. It is not clear — it is not a hearsay statement. We are not offering it for the truth of the matter.

For all we know, it was very much in furtherance of the conspiracy in the sense that the gun deal was just a ruse to establish a contact with Mr. Dorsey. Mr. Dorsey had no clue that his life was in jeopardy at the time that he encountered these two individuals. Consistent with that, Your Honor, the [S]tate’s position is that the whole gun deal could have been simply a ruse to establish a contact between them. It is our understanding that prior to that there had been no contact.

That was the only basis for the contact between Mr. Dorsey and Mr. Barnett prior to that. They didn’t know each other. THE COURT: [Defense counsel], it seems to me that I return to what is important here is whether or not the statement that was made three days earlier by Mr. Barnett to Mr. Dorsey that he wanted to purchase this gun which in turn explains the statement that Mr. Dorsey made the night in question that he had that thing that you are looking for, without regard to whether the statement made three days earlier was true at the time that Mr. Barnett made it, ¹¹⁹ maybe it was just a ruse to establish some contact and maybe he didn’t really want the gun. Whether he wanted the gun or not is not what is relevant or important here.

It is the fact that he had approached Dorsey about wanting a