Jordan v. State

Malcolm Jordan v. State, No. 0436 of the 2019 Term, Opinion by Moylan, J. HEADNOTE: MURDER AND CONSPIRACY – A RANDOM SHOOTING – WHAT DOES THE APPELLANT CONTEND? – PRECISELY, WHAT IS BEFORE US? -- VIDEOTAPE OF THE POLICE INTERVIEW – HYPOTHETICAL MERITS OF THE NON-CONTENTION – A BRIDGE TOO FAR – THE PRESUMPTION OF INNOCENCE – THE CONTINUING OBJECTION PHENOMENON – FIRST CONTENTION IN A NUTSHELL – DENIAL OF A MOTION FOR MISTRIAL – THE EVIDENCE IN QUESTION – POSSIBLE PREJUDICE – MISTRIAL MOTION – PROOF OF CONSPIRACY – THE PHENOMENON OF CUMULATIVE ERROR Circuit Court for Baltimore City Case No. 117017002 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 0436 September Term, 2019 _____________________________________ MALCOLM JORDAN V. STATE OF MARYLAND Leahy, Shaw Geter, Moylan, Charles E., Jr. (Senior Judge, Specially Assigned), JJ. Opinion by Moylan, J. Concurring Opinion by Leahy, J. _____________________________________ Filed: July 14, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson 2020-07-14 13:49-04:00 Suzanne C. Johnson, Clerk What is the question? The straightforward task of figuring out what the answer is can frequently be far less of an appellate burden than figuring out what the question is.

What precisely does this question ask? Is such a question even relevant? Even if so, has the question been timely preserved for appellate review? Even if so, is the question embraced by the contention actually before us?

Again we ask, “What is the question?” The fundamental problem with this appeal is that the answers the appellant argues strenuously in favor of do not match up with the questions the appellant has asked. There is no coherent core to hold everything together. “Things fall apart; the center cannot hold.”1 * * * The appellant, Malcolm Jordan, was convicted in the Circuit Court for Baltimore City by a jury, presided over by Judge Marcus Z. Shar, of murder in the first degree, conspiracy to murder, the use of a handgun in the commission of a crime of violence, and the possession of a handgun by a prohibited person. On this appeal, he raises the following three contentions: 1. Judge Shar erroneously admitted two items of allegedly prejudicial evidence; 2.

Judge Shar erroneously denied the appellant’s motion for a mistrial; and 3. The evidence was not legally sufficient to support the conviction for conspiracy. A Random Shooting 1 William Butler Yeats, The Second Coming (1919). The only seriously contested issue in this case was the identification of the appellant as the shooter.

The circumstances surrounding the shooting were not, and are not, in dispute. The shooting occurred in broad daylight on September 27, 2016, immediately in front of an apartment building at 3505 Woodland Avenue in Baltimore City. The murder victim was Tony Williams, who was shot as he rode by on his bicycle in front of the building. He was shot numerous times in his back and legs.

He was taken to the hospital by the police and underwent emergency surgery. He was subsequently released from the hospital but returned to the hospital on October 22, 2016, where he died of septic shock. The Medical Examiner concluded that the septic shock was the result of the gunshot wounds and ruled the death to have been a homicide. At 3505 Woodland Avenue, the police had discovered that the shooting incident had been vividly recorded by multiple high-definition color surveillance cameras.

The surveillance footage showed that shortly before the shooting, a car drove up and parked on a lot just outside the apartment building. Two men emerged from the vehicle and walked to the porch of the apartment. One of the two men, later identified indisputably as Charles McEachin, entered the building. The second man, the ultimate shooter, stayed outside and appeared to have borrowed a cigarette lighter from one Linda Phillips, a resident of the apartment building.

Within several minutes, McEachin re-emerged from the building and handed the actual shooter a beer. When Tony Williams, the victim, rode by several minutes later, the shooter stepped out and shot him numerous times in the back and legs. McEachin, who had returned to his parked car immediately before the shooting, drove up to the 2 shooting scene. The shooter got into the front passenger seat and the two men sped away.

There is no question as to “What happened?” The only question is “Who dunnit?” Who was the shooter? The State conceded that the identity of the appellant as the shooter could probably not be adequately established by the surveillance tape alone. Two eyewitnesses, however, filled that gap. Charles McEachin, whom Linda Phillips had known for several years, was originally indicted along with the appellant as a co-conspirator.

He was tried first in February of 2018. He was convicted of the possession of a firearm by a prohibited person but was acquitted of murder and conspiracy to murder. As a State’s witness at the appellant’s trial, he identified the appellant as the shooter. He also identified the appellant on the surveillance footage.

He testified, moreover, that he had driven to 3505 Woodland Avenue with the appellant, whom he knew previously, and that he subsequently left the scene with the appellant after the shooting. Aside from routine but ineffective efforts to chip away at the weight of his identification, McEachin’s establishment of the appellant as the shooter was essentially undamaged.2 2 By today’s standards, the identification of the appellant by McEachin would have been abundantly sufficient to have satisfied the burden of production and would also have been of very significant weight with respect to the burden of persuasion. At the time of the appellant’s trial, however, McEachin’s testimony, as the testimony of an undisputed accomplice, would not, under a venerable Maryland evidentiary rule that had prevailed from Luery v. State, 116 Md. 284 , 81 A. 681 in 1911 through State v. James, 466 Md. 142 , 216 A.3d 907 in 2019, have been enough to convict the appellant unless it had been independently corroborated. In this case, however, it was amply and abundantly corroborated by the testimony of Linda Phillips.

That century-old “accomplice corroboration rule” has since been abrogated by State v. Jones as of August 28, 2019. The new dispensation, however, operates only 3 The second, also essentially undamaged, identification of the appellant as the shooter was made by Linda Phillips. She identified the appellant without hesitation on the surveillance footage, in a double-blind pre-trial photographic array, and at the trial. She had not known the appellant before the day of the shooting.

That identification by Linda Phillips coincidentally corroborated the identification by Charles McEachin. In its own right, however, it abundantly satisfied the State’s burden of production and magnified its burden of persuasion. At all costs, the defense had to disparage the identification made by Linda Phillips. It tried mightily to do so.

That trial strategy forms the context for the appellant’s first contention. What Does The Appellant Contend? What is the question? Presumably it is contained in the first contention, but the first contention is a troubling one.

What is exasperatingly challenging is to try to fit the combined question and answer into a logical place within a coherent outline of the entire trial. A meaningful question demands a coherent context, as does a meaningful answer. In the lengthy trial of the appellant, the key (the only) point of controversy was the credibility of the State’s witness Linda Phillips. The defense went to extreme lengths, at times bordering on the bizarre, to impeach the credibility of Linda Phillips.

Concomitantly, the State engaged in an arguably more than routine counter-measure to rehabilitate the credibility of Linda Phillips. As the heart of that rehabilitation effort, the Court played prospectively and does not apply to the appellant’s trial, which took place in November of 2018. Under the old rule or under the new rule, the result in the appellant’s case would be exactly the same. The appellant does not now challenge that identification. 4 before the jury a 40-minute-long videotaped interview between the police and Linda Phillips.

This entire impeachment-rehabilitation see-saw— including most especially the recorded police interview— was a distinct sub-division of the larger trial. It was, in a sense, a trial within a trial. It is, pertinently, the context for the appellant’s first contention. Precisely, What Is Before Us?

In the language of politics, a good appellate contention should stay on message, and not spin off in centrifugal diffusion. What is before us on this appeal, however, is exasperatingly diffuse. We will focus on three distinct and independent, albeit arguably related, events that were all part of the impeachment-rehabilitation saga. The first is the 40- minute videotaped interview of State’s witness Linda Phillips by Detective Jill Beauregard.

The second and third are specific, allegedly prejudicial remarks made to Linda Phillips by Detective Beauregard in the course of that 40-minute interview. But what exactly is the contention? A. The Videotape Of The Police Interview (Not A Contention) The context for the first contention arose out of the evidentiary ruling by Judge Shar permitting the State to play for the jury the 40-minute videotape of the interview between Linda Phillips and Detective Jill Beauregard. We discuss this ruling simply to set the scene for the contention that follows.

The propriety of the ruling, however, is not itself a contention. It could have been a contention. We daresay the appellant would like it to be a contention. But it is most definitely not a contention.

It does, however, set the stage for the contention. It is, however, a much larger stage than the contention actually raised. The opening page of the appellant’s brief states the two-pronged contention as framed by him: 5 I. THE CIRCUIT COURT ALLOWED THE JURY TO HEAR HIGHLY PREJUDICIAL EVIDENCE. A. A Key Witness’s Safety Concerns Improperly Stoked the Jury’s Fears B. Beauregard’s Comment That Defendants Normally Plead Guilty Vitiated the Presumption of Innocence.

At the very outset of the appellant’s argument in his brief, he reiterated the contention in precisely the same terms. I. THE CIRCUIT COURT ALLOWED THE JURY TO HEAR HIGHLY PREDUCIAL EVIDENCE. A. A Key Witness’s Safety Concerns Improperly Stoked the Jury’s Fears. B. Beauregard’s Comment That Defendants Normally Plead Guilty Vitiated the Presumption of Innocence.

The contention thus framed explicitly refers only to two small snippets of allegedly prejudicial conversation contained within a much larger 40-minute-long segment of the trial. It does not embrace the larger procedural decision to allow the entire videotaped police interview to be played before the jury. The contention does not even refer to that larger and antecedent procedural issue. The very decision to hold a trial, for instance, is not ipso facto tainted by something prejudicial that might occur in the course of the trial.

Nor is the decision to hold a significant segment of a trial ipso facto tainted by something prejudicial that might happen in the course of that trial segment. A contention narrowly focusing on a substantive part of the whole is not a contention adequately challenging the whole. 6 Albeit formally framing his contention in narrow substantive terms-- two precise items of allegedly prejudicial evidence-- the appellant devotes a significant portion of his “argument” to attacking the broader procedural question-- the antecedent decision to allow the playing of the entire 40-minute-long videotape. The analytic fuzziness of such an approach attempts to merge the broad procedural background question with any or all of its possible substantive consequences or sequelae. It is as if the appellant is trying to say, “But for the decision to play the videotape, the State would never have been in position to introduce the prejudicial evidence.” That, of course, would be akin to asserting, “But for the Court’s decision to let the State take the defendant to trial, the State would never have been in a position to violate his Miranda rights.” To contend that Miranda was violated does not contend that the trial itself should never have occurred.

The pleading requirements of an appellate “contention” are not so sweepingly lax and diffuse. We, therefore, hereby divorce the broad procedural decision to permit the playing of the videotape, which is not a contention before us, from all of the substantive instances that may have occurred in the course of that videotape, two of which do constitute the contentions before us. Hypothetical Merits Of The Non-Contention In this case, however, we will assume for the moment, purely arguendo, that the broader procedural contention is actually before us. A surface glance reveals it would be a badly flawed contention in two regards.

In stark contrast to Portia’s quality of mercy3, which was “twice-blest,” the appellant’s first contention would be “twice curst.” In the first 3 Shakespeare, The Merchant of Venice. 7 place, it is highly questionable whether the contention would even have been timely preserved for appellate review. As the trial was winding down for the day on October 16, 2018, Linda Phillips was concluding her testimony. During a lengthy cross-examination, defense counsel had vigorously attacked her credibility, specifically her ability to identify the appellant, in a number of ways. The defense brought out (or attempted to bring out) that in the course of an earlier interview with the police, Linda Phillips had admitted that she was intoxicated at the time of the shooting and further that she was not paying close attention until the moment of the shooting.

The defense also strongly insinuated that during that interview, the police had attempted to lure her into cooperation with the police by offers of financial assistance and help in relocating her residence. There was also strenuous disagreement between the defense and Linda Phillips about whether she wore glasses and about what she had told the police in that regard in the course of the police interview about whether she wore glasses. As the Assistant State’s Attorney concluded his then ensuing redirect examination, he informed Judge Shar that he was offering into evidence the videotape of the entire police interview, under Maryland Rule of Criminal Procedure 5-616, as a prior consistent statement in order to rehabilitate Linda Phillip’s impeached credibility. ASSISTANT STATE’S ATTORNEY: Your Honor, under 5-616, the State’s proposing to be allowed to play her statement, believing that the-- THE COURT: Prior consistent statement?

ASSISTANT STATE’S ATTORNEY: Yes. 8 THE COURT: Okay. ASSISTANT STATE’S ATTORNEY: Thank you. (Emphasis supplied.) Maryland Rule 5-616(c)(2) provides: (c) Rehabilitation. A witness whose credibility has been attacked may be rehabilitated by: … (2) Except as provided by statute, evidence of the witness’s prior statements that are consistent with the witness’s present testimony, when their having been made detracts from the impeachment.

(Emphasis supplied.) A minute or so later, the formal acceptance of the videotape took place. ASSISTANT STATE’S ATTORNEY: Your Honor, the State’s going to move into evidence State’s Exhibit Number 27. THE COURT: All right. (Emphasis supplied.) That ended the entire discussion.

At no time on October 16, did the defense offer a word of protest or objection. The trial then recessed for the day. Neither then nor later did the defense attorney voice any objection to the use of the videotape as a legitimate measure to rehabilitate Linda Phillips’s impeached credibility. Ordinarily, that would constitute an open and shut case of non-preservation.

Maryland Rule 4-323(a) directs that “[a]n objection to the admission of evidence shall be made at the time the evidence is offered or as soon thereafter as the grounds for the objection become apparent. Otherwise, the objection is waived.” (Emphasis supplied.) Mills v. State, 239 Md.App. 258, 280 , 196 A.3d 497 (2018)(“An objection, whatever its character, must still be timely.”); Williams v. State, 9 131 Md.App. 1, 26 , 748 A.2d 1 (2000)(“When evidence is received without objection, a defendant may not complain about the same evidence coming in on another occasion even over a then timely objection.”) If the rule is literally applied, that would do it for this unmade objection. By the time the trial resumed on the following morning, however, defense counsel had rethought the matter. The “morning-after” objection, however, had nothing to do with the impeachment-rehabilitation issue but was solely on the wholly different basis that playing a 40-minute videotape was excessive as a rehabilitative measure and would give the State the benefit of having Linda Phillips identify the defendant twice.

On this second, and admittedly less hectic, occasion for ruling on the videotape’s admissibility, Judge Shar considered the defense objection and a made a ruling on the merits. THE COURT: Well, there are things I think the video can show that the testimony cannot and considerations that we, that the court instructs the jury that they should or can consider, and that includes the certainty or lack of certainty, the amount of time perhaps that it took, whether there was hesitancy, there was questioning about the glasses whether she seemed to be squinting or whatever. The objection is certainly preserved, but I’m going to have to overrule it, deny it, I’m sorry. (Emphasis supplied.) Almost all of the impeaching cross-examination had made reference to various events occurring in the course of the videotaped interview.

Statements referred to on the videotape made by Linda Phillips were being used by the defense as prior inconsistent statements. As a rehabilitative proffer, the videotape was offered by the State as a set of prior consistent statements. Judge Shar recognized the pertinence of the entire interview. 10 Quite aside from its ultimate status as a viable contention, we are going to look for at least a passing moment, purely arguendo, at the possible merits of the contention. On the merits, we would see no remote abuse of discretion by Judge Shar in admitting the videotape for the purpose of rehabilitating impeached credibility.

The videotape squarely refuted insinuation after insinuation suggested by the defense. For yet another reason it is axiomatic that the twin substantive contentions raised on appeal are far from being a mere subset of the procedural objection actually argued, even if not timely so, at trial. Their respective purposes did not even correspond. At trial, the compelling strategy (realistically, the only strategy) was to challenge the identification of the appellant as the shooter by Linda Phillips.

Accordingly, the defense argued that the playing of the 40-minute videotape should not be allowed, because that would emphasize that act of identification by allowing it to be made before the jury for a second time. That was the obvious and compelling trial strategy. Appellate strategy, on the other hand, long divorced from the live pulse of the trial, frequently proceeds from a far different launching pad. As an academic exercise, appellate counsel pore over a transcript and try to spot targets of opportunity, whether those targets were really central to the trial or not.

Neither of the twin contentions now being raised had anything remotely to do with Linda Phillips’s identification of the appellant. Linda Phillips’s apparent temerity to appear as a witness is now being exploited by the defense to show that the State was trying to intimate that the appellant was a bad and threatening person. That had nothing to do with the weight of the identification. Detective Beauregard’s observation about the pleading habits of many criminal defendants, by the same token, is 11 now being characterized by the defense as an attack on the jury’s belief in the presumption of innocence.

That also has nothing to do with the identification of the appellant as the shooter. The two substantive sub-contentions are not lesser included aspects of the procedural argument made at trial. They had different and unrelated purposes. They were simply unrelated targets of appellate opportunism and were not embraced by the continuing objection that covered the playing of the videotape.

It is also significant, moreover, that the appellant never requested that the videotaped police interview be reviewed and redacted before being played before the jury. Whether, however, the appellant suffered the overruling of his motion 1) on the merits or 2) on the grounds of non-preservation or 3) on both is a matter of complete immateriality to the present appeal. The overriding mootness of the issue is made doubly clear by the fact that an attack on the very playing of the videotape has never been presented as a viable contention before us in any event. Any contention that the playing of the videotape itself was prejudicial, moreover, would have had no merit in any event.

B. A Bridge Too Far This brings us to the specific and allegedly prejudicial items that are the twin components of this double-barreled contention that is actually before us. The appellant contends that in the course of the videotape of the police interview of Linda Phillips, two instances of “highly prejudicial evidence” were played before the jury. Those two instances, however, are at the far, far edge, the Ultima Thule, of an extended tangent. Their relevance is attenuated to the extreme.

In terms of even arguable relevance to the decision 12 to allow the playing of the videotape, they are simply a bridge too far. The first alleged error was: Evidence that Phillips, the State’s essential witness, was afraid for her safety… was overwhelmingly prejudicial and created a clear possibility that the jurors voted to convict out of a misplaced desire to protect Phillips or themselves, instead of based on the evidence. (Emphasis supplied.) The appellant quotes several pages of abstract caselaw, condemning prejudicial and threatening remarks in other cases with no resemblance to this one. The prejudice in those cases inhered in threatening conduct on the part of defendants (or their adherents).

There was no such conduct here. A word-by-word search of the appellant’s entire sub-contention, moreover, quotes a scant eleven words from the entire videotape. Those words, moreover, were the words of Detective Beauregard and not those of Linda Phillips. We highlight them here in bold type.

The jury witnessed an extended videotaped conversation during which a detective investigating the shooting at issue here told Phillips that people would “TRY” and “HARASS” her for cooperating with the police, that “I DEFINITELY KNOW YOU ARE CONCERNED ABOUT YOUR SAFETY.” The appellant reads far more into those eleven words than we can read into them. He asserts: This improperly admitted evidence thus created a risk that the jury convicted Jordan in order to protect a frightened witness; caused the jurors to weigh their own safety in rendering a verdict; and implied that Jordan was dangerous and thus likely guilty. (Emphasis supplied.) The appellant concludes this segment of his argument: 13 On this record, it is impossible to conclude that fear had no effect on the jury’s decision making. The circuit court erred by allowing the jury to hear about witness’s fears, and by allowing jurors whose impartiality might have been compromised to determine Jordan’s guilt.

(Emphasis supplied.) On the hypothetical merits, we conclude that the appellant has attributed to Linda Phillips an apprehension that Linda Phillips never herself articulated. In developing and in arguing that sub-contention, the appellant has not quoted a single word uttered by Linda Phillips. Why any nervousness or apprehension on the part of Linda Phillips about appearing as a witness, moreover, even if it existed, would generate fear in the jurors is in no way suggested. The appellant, however, leaps to just such an assumption.

Most significantly, no threatening word or gesture on the part of the appellant, his family, or his friends was in any way suggested. To generate prejudice against the appellant, some misconduct on the part of the appellant (or his adherents) would be required. The quoted passage does not suggest any such misconduct. Spontaneous apprehension on the part of a witness, even if present, does not suffice.

We see no merit in a free-wheeling symptom absent a well-diagnosed cause. The nervous anxiety of the witness does not ipso facto establish misbehavior on the part of the appellant. In a converse scenario, an obliviousness to danger by the witness would not preclude misbehavior on the part of a defendant. The internal state of mind of the witness is simply irrelevant unless it can be related to an external cause.

Having concluded that there is not a scintilla of merit in this entire sub-contention, it is almost cruel to note that even if, arguendo, there had been, there was no objection and 14 nothing in this regard was remotely preserved for appellate review. Throughout the playing of this part of the videotape, the defendant did not raise an eyebrow. Yet it wishes to charge Judge Shar with the duty to listen with rabbit ears and to pounce sua sponte at any vague inference or allusion. We will return to this issue of non-preservation infra as we consider the second sub-contention.

C. Presumption Of Innocence The second and final of the two sub-contentions virtually accuses the State of attempting to strike a lethal blow at the Magna Charta itself. The appellant alleges that the 40-minute videotape told the jury that they did not have to give the appellant the presumption of innocence. In terms of its gravity, the appellant waves the bloody flag of this contention as if the words of Detective Beauregard on the videotape threatened to destabilize the very tectonic fault line beneath the field at Runnymede. The edifice of justice is trembling.

The detective’s actual words, however, were not nearly so seismic. In the police interview, Detective Beauregard attempted to reassure Linda Phillips that her identification of the appellant would not be made known to the appellant unless there was a trial. If, as frequently happens, there was a guilty plea by the appellant, there, of course, would be no trial. When Linda Phillips sought reassurance that her identification of the appellant would remain anonymous, Detective Beauregard replied: Absolutely.

Absolutely. So the only way the individual would know, providing he is in the photo array, is if it ever went to court, and most of the time these people plea out. So when you plea they never hear, they never know anything. They just accept the plea and go to jail.

If he, you know, asks for a trial then, of course, at that time, which is usually at least a year down the road, we have to make that information available to his public defender 15 or lawyer, but unless you say something the police department does not release that information. (Emphasis supplied.) Detective Beauregard’s observation about many or most arrestees ending up by pleading guilty has absolutely nothing to do with the presumption of innocence. The appellant did not enter a guilty plea. The appellant pleaded “Not guilty” and elected to go to trial, wherein he enjoyed the full benefit of the presumption of innocence.

The presumption of innocence means simply that at a criminal trial, the State carries the complete burden of proving all elements of the crime against the defendant beyond a reasonable doubt. The presumption does not apply to those who plead guilty and who, therefore, do not go to trial. Defendants at the trial table are presumed to be innocent. Arrestees generally, by contrast, are not presumed to be innocent, nor are defendants who have entered guilty pleas.

In Williams v. State, 322 Md. 35, 41 , 585 A.2d 209 (1991), Judge Orth spoke for the Court of Appeals in describing the presumption of evidence. The “presumption of innocence” is in truth merely another form of expression for a part of the accepted rule for the burden of proof in criminal cases, i.e., the rule that it is for the prosecution to adduce evidence and to produce persuasion beyond a reasonable doubt. (Emphasis supplied.) In Evans v. State, 28 Md.App. 640 , 349 A.2d 300 (1975), this Court undertook an extensive and intensive review of such evidentiary terms as burden of proof, inference, and presumption. We pointed out that of the five legally recognized meanings of the word 16 “presumption,” one of them was “presumption of innocence.” With respect to it, we set out the pertinent national law with respect to it at 28 Md.App. 676, n. 13 .

The ‘presumption of innocence’ is, of course, not a presumption at all. 9 Wigmore on Evidence (3rd Ed. 1940), s. 2511, points out at p. 407, ‘(t)he ‘presumption of innocence’ is in truth merely another form of expression for a part of the accepted rule for the burden of proof in criminal cases, i.e. the rule that it is for the prosecution to adduce evidence . . . and to produce persuasion beyond a reasonable doubt . . .' Thayer, Preliminary Treatise on Evidence (1898), is equally clear, at p. 551, ‘In the first place, the so-called presumption of innocence is not, strictly speaking, a presumption in the sense of an inference deduced from a given premise. It is more accurately an assumption which has for its purpose the placing of the burden of proof upon anyone who asserts any deviation from the socially desirable ideal of good moral conduct.’ And see Morgan, Basic Problems of Evidence (1962), p. 44. If the ‘presumption of innocence’ were a true presumption of law or permitted inference of fact, it would be flagrantly unconstitutional under Leary v. United States, supra, and other cases requiring that a presumption be based upon a mathematical probability that it be true. Quite the reverse likelihood, of course, applies to one arrested, indicted and brought to trial.

As McCormick, The Law of Evidence (1954), astutely pointed out, at 647- 648: ‘(W)hen it came to be employed, in argument and in instructing juries, in criminal trials under the common law, it became a source of mysticism and confusion. As applied to the accused, any assumption, or ‘presumption’ of innocence, in the popular sense of an inference based on probability, is absurd. The probability is the reverse. The assumption of innocence which is reasonable in the absence of contrary facts becomes quite unrealistic when we include in the picture the facts that the person has been officially charged with the crime and has been brought to trial.

Nevertheless, the phrase ‘presumption of innocence’ has been adopted by judges as a convenient introduction to the statement of the burdens upon the prosecution, first of producing evidence of the guilt of the accused and, second, of finally persuading the jury or judge of his guilt beyond a reasonable doubt.' On the merits of the present sub-contention, the irrelevance of Detective Beauregard’s quoted remarks is twice compounded. In the first place, the quoted remarks have absolutely nothing to do with the presumption of innocence. In the second place, any 17 possible reference to the presumption of innocence has absolutely nothing to do with the appellant in this case. The Continuing Objection Phenomenon With respect to both of these sub-contentions— Detective Beauregard’s allegedly prejudicial allusions to 1) the apprehension of Linda Phillips at making an identification and 2) the tendency of many defendants to plead guilty— there was no objection when those parts of the videotape were played and nothing, therefore, has been preserved for appellate review.

The appellant attempts to sidestep the preclusive effect of non- preservation by claiming that both of these situations were embraced within his continuing objection. To be sure, when on the morning of October 17, 2018, Judge Shar ruled for the second time that the 40-minute videotape would be received in evidence, defense counsel requested, “I just want the court to grant me a continuing objection… to the playing of the video so I don’t have to stand up and object every time.” Judge Shar replied, “Absolutely.” Based upon that, the appellant now claims that neither of these ensuing objections to prejudicial evidence is vulnerable to the charge that it had not been preserved for appellate review. They were embraced, according to the appellant, within the continuing objection that he was granted. The appellant’s brief expressly asserted, “Those errors were preserved by defense counsel’s continuing objection to Phillips’s video.” That argument has an instinctive surface appeal, but will it hold up under closer examination?

Let us, therefore, look more closely at the procedural phenomenon of the continuing objection. The appellant badly misreads the continuing objection procedural 18 device. Defense counsel’s only expressed objection to the videotape was to its allegedly excessive scope, allowing the State to have Linda Phillips’s identification made a second time. The continuing objection relieved defense counsel of the obligation of having to repeat that particular objection again and again throughout the 40-minute videotape.

That is the purpose of a continuing objection. It is Rule 4-323(b) that provides for the continuing objection. The rule itself makes it clear that for appellate review purposes, an objection, to qualify for inclusion as part of a continuing objection, must be “clearly within its scope.” (b) Continuing Objections to Evidence. At the request of the party or on its own initiative, the court may grant a continuing objection to a line of questions by an opposing party.

For purposes of review by the trial court or on appeal, the continuing objection is effective only as to questions clearly within its scope. (Emphasis supplied.) In Kang v. State, 393 Md. 97, 119-20 , 899 A.2d 843 (2006), Judge Harrell referred to the rule: Consequently, Maryland Rule 4–323(b), adopted in 1984, was created to provide a trial judge with the discretion to grant a continuing objection and thus obviates the need to object persistently to similar lines of questions that fall within the scope of the granted objection: “At the request of a party or on its own initiative, the court may grant a continuing objection to a line of questions by an opposing party. For purposes of review by the trial court or on appeal, the continuing objection is effective only as to questions clearly within its scope.” (Emphasis supplied.) The same objection does not have to be repeated. Different objections, however, to very different evidentiary issues, such as these allegedly prejudicial remarks now before us, are by no means rendered unnecessary.

They were not within the scope of the original 19 objection. A privilege not to have to repeat an objection already made is by no means a license never to have to make an objection in the first instance. The relief from not having to repeat is a relief from reiteration, not from the initial iteration. “You don’t have to repeat that argument” does not mean, “You don’t have to make it in the first place.” The clincher for the proposition that the continuing objection, albeit indulgent on the time line, is just as substantively constrained as is a one-time objection is self-evident from the animating philosophy giving rise to the preservation requirement itself. As the caselaw has made transparently clear over the decades, the intended beneficiary of the preservation requirement is the trial judge.

The preservation requirement is intended to prevent the trial court from being sandbagged by unseen error. The appellate court will not entertain a hidden error as the basis for a reversal. What is required is a timely and clearly stated objection made to the trial court so that the court has an opportunity to consider the issue and to correct the error. Appellate refusal to take notice of an unpreserved objection is not an exclusionary or cathartic measure.

It is not intended to punish the negligent party nor reward the diligent. It is first, last, and always an insistence that the trial court has been given the opportunity to correct its own error. Early in the life of this Court, Chief Judge Robert C. Murphy (later Chief Judge of the Court of Appeals) stated in Parker v. State, 4 Md.App. 62, 67 , 241 A.2d 185 (1968): The reason for the rule requiring objection as a prerequisite to appellate review is a salutary one, being designed to afford the trial judge an opportunity to correct inadvertent omissions or inaccuracies in his instructions, where the alleged error is one that might have been readily corrected if it had been called to the trial judge's attention. 20 (Emphasis supplied.) See also White v. State, 8 Md.App. 51 , 258 A.2d 50 (1969); Anderson v. State, 12 Md.App. 186, 203 , 278 A.2d 439 (1971). Much earlier on, the Court of Appeals had explained in Canter v. State, 220 Md. 615, 617 , 155 A.2d 498 (1959), that the rule: was designed to afford the trial judge an opportunity to correct inadvertent omissions or inaccuracies in a charge, and that we would not exercise our right to ‘take cognizance of and correct any plain error material to the rights of the accused,’ of our own motion, if the alleged error was one that might have been readily corrected if it had been called to the trial judge's attention.

(Emphasis supplied.) In Reynolds v. State, 219 Md. 319, 324-25 , 149 A.2d 774 (1959), the Court of Appeals, even in a case involving plain and material error, refused to entertain the issues because: In this case it is obvious that the errors complained of are such that the trial court could have—and undoubtedly would have—corrected if the defendant had interposed her objections, as she should have done, before the jury retired to consider its verdict. (Emphasis supplied). Bennett v. State, 236 Md. 562, 568 , 188 A.2d 142 (1963) was a case involving an error in jury instructions. The Court of Appeals pointed out: The purpose of Maryland Rule 756(f)— which requires that objections to instructions shall be made before the jury retires to consider its verdict— is to give the trial court an opportunity to amplify or amend its charge if it deems amplification or amendment necessary.

(Emphasis supplied.) In Vernon v. State, 12 Md.App. 157, 163 , 277 A.2d 635 (1971), Judge Powers wrote for this Court: 21 It is clear that the purpose and design of the rule is to correct errors while the opportunity to correct them still exists. Only thus is an error preserved for appellate review. It is not the purpose and design of the rule to provide an avenue for a party to lay away ammunition in the arsenal of appeal. (Emphasis supplied.) In the case now before us, neither Linda Phillips’s expression