Johnson v. State

LEAHY, J. George Johnson, (“Appellant”), and Derrick Toomer were charged and tried separately for the contract killing of bail bondsman Ralph Hall. Mr. Hall was found early in the morning on July 30, 2008, lying dead from gunshot wounds in the parking lot of KIPP Harmony Academy, a public charter elementary school located in Baltimore City. ³⁹⁸ Appellant was tried before a jury in the Circuit Court for Baltimore City after his codefendant Toomer had been convicted of murder. The State attempted to present Toomer as a witness against Appellant, but when called before the jury to testify, Toomer refused to answer questions and invoked his Fifth Amendment privilege against self-incrimination. Acting swiftly, the circuit court halted questioning and excused the jury before examining the merits of Toomer’s assertion of privilege.

The circuit court did not compel Toomer’s testimony- After the jury convicted Appellant of Mr. Hall’s murder, Appellant filed a motion for a new trial arguing, inter alia, that the State called Toomer for the impermissible purpose of using Toomer’s reliance on the Fifth Amendment privilege before the jury to imply Appellant’s guilt. Toomer maintained that the State had been made aware that he would not testify. The court, however, rejected Appellant’s contentions of error and denied his motion for a new trial. Appellant asks this Court to examine: I. Whether Appellant was denied his right to a fair trial, in violation of the Due Process Clauses of the Fifth and Fourteenth Amendments, when the prosecution called his separately tried and convicted codefendant as a witness in its case in chief with full knowledge that the witness would invoke a valid Fifth Amendment privilege and refuse to testify?

II

Whether the trial court erred in denying appellant’s motion for new trial when the prosecution, a. Improperly called appellant’s separately tried and convicted codefendant as a witness with full knowledge that the witness would invoke his Fifth Amendment privilege and refuse to testify; b. Committed a Brady violation by failing to disclose impeachment information relating to a critical prosecution witness; c. Improperly displayed a firearm to the jury, which was not admitted into evidence or forensically linked to ³⁹⁹ crime, in support of its closing argument asserting that the firearm was, in fact, the murder weapon used by appellant?

Applying the factors enumerated in Vandegrift v. State, 237 Md. 305, 309-10 , 206 A.2d 250 (1965), we conclude Appellant was not prejudiced by codefendant Toomer’s brief appearance before the jury because (1) the prosecutor did not call Toomer solely to gain the benefit of “the effect of the claim of privilege on the jury”; (2) the circuit court minimized any negative effects of Toomer’s refusal to testify when it halted questioning expeditiously and excused the jury; and (3) during the course of the trial Appellant never requested any curative instruction nor did he move for a mistrial. Regarding the other issues Appellant presented in his motion for a new trial, we perceive no error or abuse of discretion on the part of the circuit court and conclude that Appellant was not denied his right to a fair trial. BACKGROUND On July 15, 2011, a grand jury indicted Appellant for Mr. Hall’s murder on the charges of: murder in the first degree; use of a handgun in the commission of a crime of violence; wearing, carrying, and transporting a handgun upon his person; and possession of a handgun after being convicted of a disqualifying crime. The grand jury also indicted Appellant of conspiring with codefendant Derrick Toomer to commit Mr. Hall’s murder.

Appellant’s case was severed from Derrick Toomer’s on March 11, 2013, and Appellant’s first trial commenced on March 22, 2013, in the Baltimore City Circuit Court. Appellant moved for a mistrial in that proceeding, and the court granted the motion on April 1, 2013. Appellant’s second trial began on March 18, 2014. The following events transpired as the story unfolded over the six-day trial.

A. The Testimony of Hall’s Fiancé The State presented as its first witness, Ms. Faaizah Seals, who was Mr. Hall’s flaneé at the time of his death. She ⁴⁰⁰ testified that she and Mr. Hall were co-owners of Muscles Bail Bonds. Ms. Seals related that Muscles Bail Bonds was seeking a new insurer following the 2008 departure of another employee who had acted as the company surety insurer under his license as an insurance producer in Maryland. 1 Mr. Hall was looking for another person who was licensed through which Muscles Bail Bonds could be insured. 2 In the early evening hours of July 29, 2008, while Ms. Seals was cooking dinner, Mr. Hall was taking a nap. Mr. Hall’s phone rang at approximately 7:00 p.m., so Ms. Seals woke him up to tell him about the call.

He listened to the voicemail left by the caller and prepared to leave their home. According to Ms. Seals, “[Mr. Hall] said he was going to meet up with someone named G concerning insurance.... ” That evening Mr. Hall drove away in a Ford Expedition XL2 — a vehicle they both shared and used in their business. After Mr. Hall did not return, Ms. Seals tried to reach him unsuccessfully on his cell phone multiple times throughout the night and, after getting no answer, she also tried a couple of hospitals to no avail. In the morning when she awoke, she found a card under the front door from homicide detective Michael Moran asking her to give him a call.

B. Detective Moran Detective Michael Moran of the Baltimore City Police Department, Homicide Unit, was called to testify regarding his role as the primary investigating officer in this case. He testified that at 6:01 a.m. on July 30, 2008, he responded to a call notifying him that there was a deceased person in the ⁴⁰¹ parking lot of KIPP Academy at 4701 Greenspring Avenue. When Det. Moran arrived at the scene he observed “the deceased, Mr. Ralph Hall, face down wearing blue jeans[ and] a red polo,” and he noted that a medical technician had already pronounced Mr. Hall dead.

Det. Moran also testified that, when he arrived, “[Mr. Hall] had on a pair of white tennis shoes that said Muscles on them [, and] [h]e was stiff.” Det. Moran oversaw the collection of crime scene evidence, including photographs, measurements, and other physical evidence. Under his supervision, Baltimore City Crime Lab technicians processed the scene; however, no weapon or bullet casings were recovered.

Det. Moran testified that he was also present at the autopsy of Mr. Hall, and that the Assistant Medical Examiner who conducted the autopsy recovered two projectiles from Mr. Hall’s body and submitted them for ballistic analysis. Baltimore City Firearms Examiner Christopher Faber later determined that the projectiles were lead bullets of the .38A357 caliber class. During his evaluation of the scene, Det.

Moran noticed a security camera on a nearby building “up high and ... facing towards the parking lot where the victim was found.” He directed officers to recover the whole security system from KIPP Academy so that the footage from multiple cameras could be downloaded and viewed as part of the investigation. Det. Moran confirmed that the next day, July 31, Mr. Hall’s Ford Expedition was recovered on the 2800 block of Roslyn Avenue, and towed to the crime lab where it was processed as part of the crime scene. Crime lab technicians then collected DNA samples from the vehicle.

C. The Conspiracy Detailing his investigation into the homicide, Det. Moran recounted that “[b]ecause Mr. Hall had a badge and the cuffs and he had Muscles written on his shoes, we knew there was Muscles [Bail Bonds] on Bel Air Road.” This led the detective to contact Ms. Seals who, according to Det. Moran, was hysterical when he interviewed her. She told him that Mr. ⁴⁰² Hall received a voicemail and that an individual known as “Credit Card Mike, set this insurance up for his business because Ralph Hall needed his own insurance to start his business with the bail bonds.

And that he wanted to meet this guy at 7:30.” In his second interview with Ms. Seals, Det. Moran was informed that Credit Card Mike — now identified as Michael Hayes — believed that Mr. Hall set him up to be robbed earlier in 2008. Det. Moran then interviewed Michael Hayes, who had recently been arrested on a handgun violation.

Det. Moran testified that Hayes told him that Derrick Toomer was involved in the murder. Hayes also identified one of the vehicles connected to the murder; and provided police with an address, “806 Tipton,” and a hand drawn map to where they could find the vehicle. Upon investigating the address, Det.

Moran located and photographed a vehicle matching the vehicle in the security footage recovered from KIPP Academy, and that vehicle was found to be registered under the name “Darrell Toomer.” Det. Moran also testified that, on November 12, 2008, he interviewed James Nelson, who helped him narrow the suspects to Appellant and Derrick Toomer. Nelson identified both Appellant and Derrick Toomer in photographic arrays shown to him by Det. Moran.

On March 21 and 24, the State’s principal witness, James Nelson, appeared before the jury in a prison uniform. Nelson testified that he had been incarcerated twice between the time Mr. Hall was killed and Appellant’s trial and that he was currently serving a thirteen-year sentence. Nelson testified that Derrick Toomer and Appellant typically drove a burgundy red Crown Victoria. Nelson also testified that he had a conversation with both Derrick Toomer and Appellant in which Appellant admitted to killing Mr. Hall.

The following exchange took place: [THE STATE]: What did [Appellant] tell you about [Mr. Hall]? ⁴⁰³ [NELSON]: That he got robbed and that Mike paid [Derrick Toomer] for him to be killed. [THE STATE]: So [Appellant] told you that Mike paid [Derrick Toomer] to have [Mr. Hall] killed? [NELSON]: Yeah. [THE STATE]: What else did he tell you? [NELSON]: That he killed him. [THE STATE]: Who killed [Mr. Hall]? [NELSON]: [Appellant], [THE STATE]: Did he tell you how? [NELSON]: He shot him in the truck. [THE STATE]: And did he tell you with what weapon? [NELSON]: A .38. [THE STATE]: Are you familiar with any .38’s? [NELSON]: Yeah. [THE STATE]: He tell you about that? [NELSON]: We all used to use it. [THE STATE]: Can you describe the .38 you used? [NELSON]: Revolver. [THE STATE]: What color was it? [NELSON]: Black. [THE STATE]: And any other color on that gun? [NELSON]: The handle’s brown. Nelson testified that he and Appellant discussed Mr. Hall’s murder “probably eight, nine times[,]” and that Appellant told him that Derrick rode him up there to meet [Mr. Hall] and [Appellant] got out the car and walked over to [Mr. Hall’s] car— truck and, you know. ... [Appellant] said when he got up there he got out the car, talked to Derrick for a minute. Walked over to [Mr. Hall’s] car and talked to him. ⁴⁰⁴ [Appellant] said he pulled out the gun and shot him. [Appellant] said he pulled [Mr. Hall] out the car and drove off in the car. Additionally, the State introduced a photographic array in which Nelson had identified Derrick Toomer.

Nelson read his handwritten statement, made at the time of the photographic array, in open court: The person in the picture is Derrick Toomer. Face, [Appellant], told me that it was easy to kill [Mr. Hall]. When [Appellant] got out the driver’s seat of the car Derrick Toomer asked [Appellant] was he sure he could handle the shooting. [Appellant] replied, it’s nothing. [Appellant] met [Mr. Hall] and talked to him for a minute and pulled out a .38 and shot him and took his money and necklace and left. They went back to Nicole’s house, [Derrick Toomer’s] girlfriend, and split the money up.

That’s when [Derrick Toomer] called me and we met up, he told me the whole story and that he was waiting for Mike to come over to give him the money for killing [Mr. Hall]. The next day [Derrick Toomer] told me that he went back over to Greenspring[ ] to see if [Mr. Hall’s] body was still there and it was. [Appellant] then bragged that he should have shot [Mr. Hall] in the head for being cruddy for setting Mike to get robbed. Nelson also testified that he met with officers investigating Mr. Hall’s murder prior to entering a plea agreement in his own case. Nelson denied that he was either threatened or promised anything in exchange for his testimony.

The State did not disclose that Nelson was also a witness in an unrelated murder trial. D. Admission of the .38 Caliber Handgun On March 21, 2014, the State called Kelly Toomer — codefendant Derrick Toomer’s son. Kelly Toomer identified Appel ⁴⁰⁵ lant in the courtroom and testified that he, Appellant, Derrick Toomer, and James Nelson spent time together in 2008. 3 On direct examination, Kelly Toomer testified that, in 2008, he had a “[f]ew different guns,” but he could not recall the calibers of the weapons. However, he also testified to the events surrounding his arrest on August 31, 2008.

Kelly Toomer was arrested while seated in the front passenger seat of a Crown Victoria, from which two handguns were recovered by the police. When the State presented him with a revolver, marked as State’s Exhibit 20, the following exchange occurred: [THE STATE]: Mr. Toomer, can you tell the members of the jury what kind of gun this is, if you’re able to tell? [KELLY TOOMER]: My revolver, .38. [THE STATE]: You don’t remember this being one of the two guns that was in the Crown Vic glove compartment? [KELLY TOOMER]: No, I had [a] .38. I don’t know if that was the gun though. To assist Kelly Toomer’s recollection, the State introduced a portion of a document that Kelly Toomer had identified as his signed plea agreement entered into following his arrest on August 31, 2008.

The following portion of the plea agreement was read before the jury: On August 31, 2008 Kelly and Derrick Toomer were together with James Nelson and [Appellant]. Derrick Toomer handed [Kelly Toomer] a .38 revolver. Both James Nelson and [Appellant] observed this transaction between father and son. [Kelly Toomer] and [Appellant] then left together in a red Crown Victoria. At approximately 1:30 in the afternoon, [Appellant], who was driving the Crown Victoria, became thirsty and pulled over in the 2300 Block of Biddle Street. ⁴⁰⁶ He left the car running with Kelly Toomer in the front seat while he went to find something to drink.

At the same time officers were patrolling in the block when an unknown male approached the officer with information that two African-Americans had just robbed someone and that they were both armed with handguns. Officer[s] McCullough and Jones approached the car to further investigate the allegation. They observed [Appellant] exit the vehicle but did not approach until their backup arrive[d]. They approach[ed] the vehicle and s[aw] [Kelly Toomer] in the front seat.

The officers also receive[d] information that the car [wa]s not registered]. The officers order[ed] a tow truck and conducted] an inventory search pursuant to policy, discovering the .38 handgun in the glove box. All events took place in Baltimore City, Maryland. Thereafter, the circuit court resolved to admit into evidence the portion of the plea agreement that had been read before the jury, along with the caption on the cover page. 4 Following Kelly Toomer’s testimony, the State called Officer Reginald Jones.

Officer Jones testified that he conducted the August 31 search of the Crown Victoria and recovered the .38 revolver from the vehicle. Upon identification by Officer Jones, the “black, snub nose .38 with a brown wooden handle[,]” was admitted into evidence as State’s Exhibit 20 without objection from Appellant. E. DNA Evidence On March 24, 2014, Baltimore City Crime Lab technician Jennifer Ingbretson testified that she compared DNA swabs from both Appellant and Derrick Toomer to DNA swabs collected from the vehicle in which Mr. Hall was killed and ⁴⁰⁷ from Mr. Hall’s clothing. Her analysis identified Appellant as a contributor to a DNA sample collected from the steering wheel.

Ms. Ingbretson also testified that Appellant could not be excluded as a contributor to samples taken from “the pockets and adjacent areas of [Mr. Hall’s] jeans.” That same day, Baltimore City Firearms Examiner, Christopher Faber, testified that he was asked to compare the .38 revolver found in the burgundy Crown Victoria to the two lead bullets recovered from Mr. Hall’s body. Mr. Faber testified that both bullets were of the .38A357 caliber class and, although he was unable to determine whether the bullets were fired from the same gun, that the two “bear the same class characteristics.” Similarly, Mr. Faber was unable to determine definitively whether the two bullets were fired with the .38 revolver in this case. However, he indicated that the rifling in the revolver barrel had “6 lands and grooves on a left hand twist” and that the dimensions between the lands and grooves “were almost exactly the same as [the markings on] the bullets.” F. Security Footage Det. Moran narrated as the security footage from the KIPP Academy parking lot was played for the jury.

He described the relevant portion of the security footage, beginning at approximately 8:30 p.m. on July 29, 2013 when “a dark color four door vehicle pulls up, [and] backs into a spot in the same parking lot where Mr. Hall [wa]s found.” His narration highlighted the moment when Mr. Hall’s Ford Expedition pulled into the parking lot and a person from the other vehicle sat in the vehicle with Mr. Hall. After a few minutes, passed Det. Moran instructed: If you could just pay attention to the door of the driver’s side vehicle. The body falls out.

The door opens up and the body falls out of the vehicle. The individual walks around the back of the vehicle. See the lights on the bottom here? ⁴⁰⁸ The individual is standing next to the body. Still standing.

The individual now bends over. Still bent over. Now kneels down. The individual stands up.

The door opens. See the lights? He gets in. The door shuts.

The brake lights come on. He backs up. He leaves the parking lot. Mr. Hall is still on the ground.

G. Codefendant’s Refusal to Testify On March 25, 2014, the State sought to call codefendant Derrick Toomer as a witness. Toomer had already been convicted of Hall’s murder, and his case was on appeal. Toomer’s counsel, Celia A. Davis, would later explain during a post-trial motions hearing that on the fourth day of trial, March 24, 2014, “after 5:00 p.m. [she] received a phone call from [the prosecutor] indicating that he wanted to speak to Mr. Toomer, [her] client, about his testimony in [Appellant’s] murder case.” Ms. Davis testified that she then spoke with her client via video conference and arranged to speak to him again the following day at the courthouse. After speaking with Toomer, Ms. Davis met with the prosecutor.

Regarding their conversation, Ms. Davis testified: I told [the prosecutor] that my client would not testify. That he would invoke his Fifth Amendment rights. That [Toomer] was not interested in signing the immunity agreement, and he was well aware that he could be held in contempt of court. Notwithstanding that exchange, at trial the State went ahead and called Derrick Toomer as a witness.

The following occurred: [THE STATE]: Your Honor, I apologize for approaching. Before I announced the witness in the presence of a jury, I just wanted to see if Mr. Toomer is here and his attorney ⁴⁰⁹ and give them one last chance to reflect on the decision not to— THE COURT: Do you want a break? [THE STATE]: I think it is probably helpful just in light of the precariousness of this witness. THE COURT: All right. All right.

We’ll get him in and see if there are any preliminaries we have to do before the jury comes down. [THE STATE]: Thank you, Your Honor. (At 10:39:59 a.m., counsel returned to trial tables and the following occurred in open court:) THE COURT: Ladies and gentlemen, our next witness will take a moment to get set up, so why don’t [I] give you a slight break. We’ll bring you back hopefully in about five minutes. (At 10:40:15 a.m., the jury left the courtroom.) [THE STATE]: Your Honor, I’m going to step back and confirm my understanding with Mr. Toomer’s attorney that nothing has changed.

THE COURT: Very well. [THE STATE]: In all candor, given that we only have what we have here with Mr. Toomer, I would like to have Mr. Toomer for the first time in the presence of the jury just start asking him questions without giving him a chance to be more (inaudible) than he probably is. THE COURT: Very well. [THE STATE]: I just wanted to make sure his counsel didn’t want immunity, which I would want to do. THE COURT: Very well. [THE STATE]: Thank you, Your Honor. (10:42:50 a.m. — Off the record.) (10:50:56 a.m. — On the record.) [THE STATE]: Your Honor, we’re going to get [defense counsel], and I think we will be— ⁴¹⁰ THE COURT: [Defense counsel] will be here momentarily.

He is — Sooner than momentarily. Bring the witness in, please. [THE STATE]: Do you want to bring him to the stand before the jury comes? THE COURT: Is he ready to roll? [THE STATE]: I believe he is. THE COURT: Well then let’s get the jury.

THE CLERK: All rise for the jury, please. (At 10:52:56 a.m. the jury entered the room). After Toomer answered some initial identifying questions, the following exchange occurred in front of the jury: [THE STATE]: You’re presently incarcerated. Is that correct? [DERRICK TOOMER]: Yes. [THE STATE]: Where are you currently incarcerated? [DERRICK TOOMER]: North Branch Correctional Institution. [THE STATE]: Mr. Toomer, you currently have an appeal that is pending is that right? [DERRICK TOOMER]: Yes. [THE STATE]: And you have an attorney representing you with respect to that appeal, correct? [DERRICK TOOMER]: Yes. [THE STATE]: Do you know her name? [DERRICK TOOMER]: Celia Anderson Davis. [THE STATE]: And is she present in the courtroom today? [DERRICK TOOMER]: Yes. [THE STATE]: Has the State promised you anything in exchange for you taking the stand today? [DERRICK TOOMER]: No. [THE STATE]: Ms. Davis asked, in your presence, if the State would offer you anything and you recall the State indicating that we would not offer you anything.

Is that right? ⁴¹¹ [DERRICK TOOMER]: Yes. [DEFENSE COUNSEL]: I think I should object. THE COURT: Overruled. Let’s just get past this and get moving. [THE STATE]: Thank You. [DEFENSE COUNSEL]: Judge, I’m sorry— [THE STATE]: Mr. Toomer, you were originally charged in the murder— [DEFENSE COUNSEL]: —let me be clear. [DERRICK TOOMER]: I am invoking my Fifth Amendment right. I am not answering any more questions, sir. [DEFENSE COUNSEL]: Judge, I want to say [Toomer’s attorney] stood up.

That’s why I objected. I apologize. I don’t mean “she” disrespectfully. I mean his lawyer stood up, his counsel.

THE COURT: Ms. Davis is here, yes. [DEFENSE COUNSEL]: Okay THE COURT: He acknowledged it. Ms. Davis is here. [THE STATE]: Mr. Toomer, the State indicated to you that if you wish to invoke your Fifth Amendment privilege, the State was prepared to give you use and derivative use immunity to ensure that you would be compelled to testify. Do you recall that? [DERRICK TOOMER]: I’m not trying to waste your time. I’m not answering any questions.

I respectfully decline. I’m not going to answer any more questions from this point on. [THE STATE]: Your honor, I can do this on the record in the presence of the jury, or I can do it at the bench to extend what I believe will compel him to testify. [DEFENSE COUNSEL]: I’m going to object, Judge. THE COURT: Let’s excuse the jury again for a few minutes. During the ensuing bench conference, the State explained that Toomer did not request immunity and that the State believed immunity was not necessary to compel Toomer’s ⁴¹² testimony because he was already convicted.

Nevertheless, the State was prepared to grant Toomer use and derivative use immunity in order to compel his testimony. Toomer’s counsel averred that Toomer could not be compelled to testify because he had a pending appeal and his testimony could be used against him in a federal prosecution. The Court allowed the State to ask a few questions of Toomer — outside the presence of the jury — to “explor[e] whether there are any areas about which Mr. Toomer would be willing to talk.” Toomer, however, continued to refuse to answer any questions. The following exchange occurred: [DERRICK TOOMER]: I am not saying anything.

I will not under no circumstances. Hold me in contempt. Give me the time. Let me go, please.

Please, sir. THE COURT: Any other areas that you think might be an area that he would like to discuss. [THE STATE]: Mr. Toomer, can you tell us why you don’t want to discuss any? [DERRICK TOOMER]: I’m not answering no more questions. [THE STATE]: Your Honor, can I ask the court to direct him to answer these questions? [DERRICK TOOMER]: This is my answer, but I will respond to the Court. THE COURT: The Court’s not going to order him to answer the questions. That would accomplish absolutely and completely nothing.

Mr. Toomer has made clear that anything that he would have to say that would be a benefit to the State or a benefit to Mr. Johnson is not going to be presented by him.... THE COURT: ... Is there any point in having Mr. Toomer presented any longer in this case? [THE STATE]: Court’s indulgence, Your Honor. Your Honor, I trust you would not allow me to, just to make it ⁴¹³ clear to the jury what’s happening here, ask these questions?

THE COURT: I think the jury got a flavor of that already. Something that was unnecessary. I don’t believe prejudicial, but we could have accomplished this before the jury even came down. [THE STATE]: That was my aim, but I didn’t appreciate that this was how it was going to unfold. So, I would apologize to the Court.

I think that the State does not need to ask Mr. Toomer any questions. THE COURT: Very well. Can we bid Mr. Toomer a fond farewell? [DERRICK TOOMER]: Thank you. You have a nice day.

THE COURT: You do the same. Thereafter, the court excused Toomer, and without objection the trial proceeded. In closing argument, on March 26, the State used the .38 revolver as a prop without objection when it guided the jury through the evidence presented regarding the potential murder weapon. The State pointed to Kelly Toomer’s testimony establishing that he and Appellant were both in the vehicle where the .38 revolver was found; ballistics evidence indicating that the bullets recovered from Mr. Hall’s body were fired from a .38 revolver; and Nelson’s description of the .38 revolver that he testified Appellant used in the murder.

The State argued: Before the ballistics confirmed that the bullet[s] that killed [Mr. Hall] were fired from a weapon with a six left twist, James Nelson told you it was this .38 caliber revolver that Kelly Toomer was arrested with which happens to be a Colt revolver that an expert told you is one of the few weapons that has a six left twist. Shortly thereafter, the jury found Appellant guilty on all counts. ⁴¹⁴ H. Motion for a New Trial On April 1, 2014, Appellant filed a motion for a new trial. During two separate hearings held on April 23 and May 2, Appellant raised four arguments to support his motion: (1) that the State, in its closing rebuttal, raised facts not in evidence when it suggested that DNA evidence was found inside (rather than near) the victim’s pants pockets; 5 (2) that the State improperly displayed a gun that had not been admitted into evidence during closing argument; (3) that the State improperly placed Derrick Toomer on the stand when it knew that he would assert his Fifth Amendment privilege and refuse to testify; and (4) that the State violated Maryland Rule 4-263(d)(6)(B) and the principles of Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963) by not disclosing that James Nelson was a State’s witness in another unrelated murder case. During the May 2, 2014 hearing, (as we already discussed) Derrick Toomer’s attorney affirmed that she had advised the State that Toomer would invoke his Fifth Amendment privilege prior to his testimony.

Then, in support of his Brady violation charge, Appellant offered two exhibits, obtained as supplemental discovery in unrelated cases. Appellant maintained that one disclosure revealed that Nelson was a witness in another homicide case and the other disclosure named “James Mitchell” — who Appellant believed was actually Nelson — as a witness. The State rebutted Appellant’s charge by calling Bethany Durand, the primary prosecutor in the other case in which Nelson was named as a witness. Ms. Durand testified that Nelson was given no promises, agreements or assurances in exchange for his testimony.

Ms. Durand also testified that “James Mitchell” was indeed a separate person and that she was unaware of any other pending prosecutions in which Nelson was a witness. ⁴¹⁵ The circuit court denied the motion for a new trial. In its oral ruling on May 2, 2014, the circuit court stated: As to ... the admission of the gun and the demonstration of the gun to the jury, guns have taken on a different significance now. There’s no question about that, but when an object is entered into evidence, it is fair game for it to be used as a prop in one’s presentation to the jury and argument. As to the involvement of Derrick Toomer in the trial, considering Vandegrifi, and the analysis that I am to make, a few observations.

Number one, his appearance here was brief. I will concede it was dramatic, but I do not think all things considered, it was prejudicial. Now, as to the specific areas of concern. Was there anything about his presentation in the court that would have caused the jury to conclude, other than the other evidence that was presented, focusing on his presentation here, that he was particularly involved in the case or that [Appellant] was particularly involved in the case[?] We never got to that level.

We got past him reluctantly even telling us who he was to the point of saying I’m not saying anything. Did the prosecution anticipate the assertion? Did they know he was going to assert his Fifth Amendment privilege particularly in the modern circumstance where immunity can be granted and the Court can then hold in contempt and accumulate some sentences against a person who refused to cooperate who’s been given immunity[?] I don’t know that they could absolutely anticipate that the power of my personality and the power of my office would not be able to at least encourage Mr. Toomer to participate here. As soon as Mr. Toomer’s reluctance was demonstrated, I sent the jury out, and then we interviewed Mr. Toomer to ⁴¹⁶ develop, I assume, our joint group impression that there was nothing that could be done under any circumstances that would persuade Mr. Toomer to actually testify in this case.

But counsel were given the full opportunity to address the jury and to make argument to them about any conclusions they should draw from this circumstance. Under the circumstances, I do not find that brief event in the course of a long trial to be of such significance as to cause the granting of a new trial. Now, that brings us to the issue today. The new issue as to whether or not there was a violation of Maryland Rule 4-263(d)(6)(B) sufficient to cause the grant of a new trial.

I am not satisfied that exists. I am not satisfied that upon consideration of the proffer of the State ... plus the testimony of Ms. Durand, I do not believe there is any evidence whatsoever to suggest that there are any type of promises, inducements or benefits which have been presented to Mr. Nelson. That same day, the circuit court sentenced Appellant to life in prison for the murder of Mr. Hall; 20 years for use of a handgun in a crime of violence (to run consecutive to the life sentence); five years without the possibility of parole for possession of a regulated firearm (also consecutive); and a concurrent sentence of life in prison for conspiracy to murder Mr. Hall. Appellant filed a timely notice of appeal on May 5, 2014.

Additional facts will be introduced as required in the following discussion. DISCUSSION I. The central issue in this case is whether Appellant was denied his right to a fair trial when the State called his separately-tried-and-convicted codefendant, Derrick Toomer, ⁴¹⁷ before the jury with knowledge that Toomer would invoke his Fifth Amendment privilege. Before this Court, Appellant points out that by the time Toomer was called to testify, “the jury had heard much about [Toomer’s] alleged involvement in the murder,” and that “while Toomer’s testimony in front of the jury was short, the jury was informed that he was incarcerated ... [his case] was pending appeal, and watched him invoke his Fifth Amendment privilege just as the prosecutor asked him if he had been convicted of murder.” Appellant maintains that there was “no confusion” about whether Toomer would invoke the privilege. He asserts that “[t]he prosecution’s act of calling Derrick Toomer to the stand with full knowledge that he would invoke his Fifth Amendment privilege was an attempt to add critical weight to [the State’s] case ... and constituted flagrant misconduct.” The State advances the threshold argument that Appellant failed to object to Toomer’s testimony at the time it was offered.

To the extent that Appellant’s claim of error may be preserved, however, the State underscores that the relevant case law “does not stand for the proposition that a prosecutor may never call a witness who declines to answer questions[.]” The State concedes that “Toomer’s testimony was ‘dramatic,’ ” but maintains that the trial court did not abuse its discretion in finding that the testimony was not harmful to Appellant. Standard of Review Vandegrifi, supra, does not explicitly set out a standard of review for conducting the unique examination under its enumerated factors. We conclude, upon review of Vandegrifi and its progeny, that although we will not hesitate to overturn a circuit court decision resting on erroneous legal conclusions, we accord deference to the court’s weighing and balancing of the Vandegrifi factors. In Adkins v. State, the Court of Appeals related that the “Vandegrifi factors serve [only] as guidelines to assess the overall circumstances of the invocation of the privilege.” 316 Md. 1, 13 , 557 A.2d 203 (1989).

Where a trial court must ⁴¹⁸ determine whether evidence that was presented or an event that occurred during trial might unfairly prejudice the defendant, that finding is ordinarily accorded deference because the trial judge is best situated to evaluate the degree of harm to the defendant in the proceeding. For example, in State v. Faulkner, the Court of Appeals observed that, “[t]he necessity for and probative value of the ‘other crimes’ evidence is to be carefully weighed against any undue prejudice likely to result from its admission. This segment of the analysis implicates the exercise of the trial court’s discretion.” 314 Md. 630, 635 , 552 A.2d 896 (1989) (internal citations omitted). Similarly, in assessing whether there is a reasonable basis for invocation of the privilege against self-incrimination, the trial judge, “in appraising the claim ‘must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence.’ ” Richardson v. State, 285 Md. 261, 266-67 , 401 A.2d 1021 (1979) (quoting Hoffman v. United States, 341 U.S. 479, 486-87 , 71 S.Ct. 814 , 95 L.Ed. 1118 (1951)).

The Court of Appeals when addressing a mirror image of the present case — i.e., conducting an analysis of the Vandegrift factors where a defendant in a criminal case sought to call a witness to the stand who intended to invoke his Fifth Amendment privilege before the jury — has stated: We conclude that just as a trial court must determine whether a witness is properly invoking his Fifth Amendment privilege, the trial court must exercise its discretion and determine if a defendant will be unfairly prejudiced by the court not allowing the defendant to call a potentially exculpatory witness that the defendant and the trial court know will invoke his Fifth Amendment privilege in the presence of the jury. Gray v. State, 368 Md. 529, 561 , 796 A.2d 697 (2002). We note that many of the Maryland cases involving the factors enumerated in Vandegrift and the concerns articulated in Namet v. United States, 373 U.S. 179 , 83 S.Ct. 1151 , 10 L.Ed.2d 278 (1963), appear before this Court challenging the denial of a ⁴¹⁹ motion for mistrial, which we then review for abuse of discretion. See, e.g., Jones v. State, 86 Md.App. 204, 210 , 586 A.2d 55 (1991) (“[T]he decision to grant a mistrial is addressed to the sound discretion of the trial court, the exercise of which is not to be disturbed on appeal in the absence of abuse.

Whether a trial court’s ruling on a motion for mistrial is an abuse of discretion is dependent upon the attendant circumstances.” (internal citations omitted)); Somers v. State, 156 Md.App. 279, 291 , 846 A.2d 1065 (2004) (citing Klauenberg v. State, 355 Md. 528, 552 , 735 A.2d 1061 (1999) (“The decision to grant or deny a motion for mistrial is within the sound discretion of the trial judge.”)). Cf. State v. Corrales, 138 Ariz. 583 , 676 P.2d 615, 619 (1983) (en banc) (“The correct rule ... is that if the court finds that the fifth amendment will be properly invoked, it has discretion to determine whether to allow the proponent of the evidence to call the witness and elicit the claim of privilege before the jury.”). We conclude that the ultimate decision of the circuit court, after balancing the Vandegrift factors in the context of the attendant circumstances, is entitled to deference and should not be disturbed absent an abuse of discretion.

Codefendant Testimony and the Privilege against Self-Incrimination The Fifth Amendment to the Constitution of the United States provides that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” Similarly, Article 22 of the Maryland Declaration of Rights states “[t]hat no man ought to be compelled to give evidence against himself in a criminal case.” Both guarantee witnesses a privilege against self-incrimination. However, as the Court of Appeals recently clarified in State v. Rice, Nero & Miller, and White and Goodson v. State (consolidated) (hereinafter Rice): “A witness’s constitutional privilege, guaranteed by the Fifth Amendment to the United States Constitution and Article 22 of the Maryland Declaration of Rights, is preserved through application of immunity statutes, which balance the witness’s privilege against compelled self-incrimination with the legiti ⁴²⁰ mate power of government to compel persons to testify.” State v. Rice, 447 Md. 594, 604 , 136 A.3d 720 (2016). Citing Kastigar v. United States, 406 U.S. 441, 446-47 , 92 S.Ct. 1653 , 32 L.Ed.2d 212 (1972), the Court noted that “immunity statutes have been referred to as ‘part of our constitutional fabric.’ ” Id. Rice involved six Baltimore City police officers charged with crimes in connection with the events leading to the death of Freddie Gray.

Id., 447 Md. at 603-04 , 136 A.3d 720 . Gray suffered injuries while in police custody and later succumbed to those injuries. Id. Officer William Porter was the first officer to stand trial.

Id. That proceeding ended in a mistrial, and the State indicated its intention to retry Officer Porter. Id. However, the State also sought, pursuant to Maryland’s Immunity statute found in the Maryland Code (1973, 2013 Repl.

Vol, 2015 Supp.) Courts and Judicial Proceedings Article (“CJP”), § 9-123, 6 to compel Porter to give immunized testimony against the remaining officers. Id. ⁴²¹ The Court of Appeals in Rice held that “the State’s compelling Officer Porter to testify in the trials of his fellow officers, under the grant of use and derivative use immunity, did not violate Officer Porter’s privilege against compelled self-incrimination.... ” 7 Id. The Court declared that “[t]he grant of use and derivative use immunity under CJ[P] § 9-123 affords the same protection against compelled self-incrimination as invocation of the privilege itselff,]”