Kelly v. State

BARBERA, J. On May 22, 2003, a jury in the Circuit Court for Montgomery County convicted appellant, Francesco Alexjandre Kelly, of two counts each of attempted first degree murder, attempt ¹²⁷ ed second degree murder, first degree assault, and use of a handgun in the commission of a felony or crime of violence. The court merged the first degree assault conviction into the attempted first degree murder conviction and sentenced appellant to a total of 40 years’ imprisonment on the remaining convictions. 1 Appellant seeks reversal of his convictions on several grounds. Principal among them is the claim that he was denied the right to be present at every stage of the trial. Finding no cause to disturb the judgments, we affirm.

FACTUAL BACKGROUND The tragic events of this case began to unfold around 11:00 p.m. on October 31, 2002. At that time, Ibrahim Sidibe, his fiancee, Melissa Wainwright, and Sidibe’s best friend, Nicholas Watson, were riding together on a public transit bus. They were on their way home from City Place Mall, in Silver Spring, Maryland, where Sidibe had been performing as the character Spiderman at a children’s Halloween party. During the bus ride, Wainwright noticed appellant seated across from them, wearing headphones and “bobbing his head up and down,” evidently in time with the music.

Wainwright made a remark about appellant that caused Watson and others on the bus to laugh. Appellant responded with a derogatory comment about Wainwright, precipitating an angry exchange between Watson and appellant. The episode ended within a minute and a half, without further trouble at that time. Shortly thereafter, Sidibe, Wainwright, and Watson got off the bus at the stop in front of a 7-Eleven Store in the White Oak area of Silver Spring.

Appellant remained on the bus, but he and Watson made “eye contact” as Watson left the bus. The three friends went into the 7-Eleven to get something to eat and drink, then returned to the bus stop to await the arrival of the next bus. Sidibe was wearing his headphones ¹²⁸ and stood about 12 to 15 feet away from Watson and Wainwright. After ten minutes or so, Wainwright and Watson heard a gun shot.

Wainwright, who was six months pregnant at the time, turned and recognized the shooter as the person about whom she had made the comment on the bus. She took off running in the direction of the 7-Eleven, hearing additional gun shots as she ran. Wainwright fell twice in her efforts to get to the store, but was able to reach it and get inside without being injured. Watson did not immediately flee upon hearing the gun shot.

Instead, he turned in the direction of Sidibe in time to see him fall to the ground. Watson saw a “shadowy figure” standing above Sidibe and pointing a gun directly at Sidibe. The figure lifted his head and pointed the weapon at Watson. Watson saw that it was “the kid from the bus,” i.e., appellant.

Watson took off running toward the 7-Eleven. Appellant fired at Watson as he ran, shooting him six times, once each in the arm, the back of his head, the right buttock, the right middle finger, the shoulder, and the chest. Watson was able to reach the store, and urged the store clerk to call the police or an ambulance. The police and emergency medical personnel arrived shortly thereafter.

Watson and Wainwright described the shooter to the police. The description was broadcasted to officers in the area. Shortly thereafter, the police stopped appellant at a location about a mile from the scene of the shooting. The police transported Wainwright to that location for a show-up.

Wainwright identified appellant as the shooter. Appellant was then arrested and taken to the police station. At the hospital several hours after the shooting and after emerging from surgery, Watson was shown a photographic array that included a photograph of appellant taken earlier that night at the police station. Watson selected appellant’s photograph as depicting the shooter. ¹²⁹ Sidibe, who was paralyzed as a result of the shooting, was able to testify about the events on the bus and before the shooting, but was unable to describe the shooter or testify in detail about the shooting itself.

He did testify, however, that he had been shot in the forehead, and injured his neck when he fell to the ground. Both Watson and Wainwright identified appellant at trial as the person who had been on the bus with them and later shot Watson and Sidibe. Following conviction and sentencing, appellant noted a timely appeal, raising four issues: 1. Whether the court committed reversible error when it refused to permit appellant to be present at a bench conference to discuss an alleged discovery violation. 2.

Whether the court committed reversible error when it refused to permit the defense to call two witnesses who were present and available to testify. 3. Whether the court committed reversible error when it refused the defense request to poll the jury and, instead, required the jury to re-deliberate, after the foreperson twice announced a “not guilty” verdict on attempted second degree murder. 4. Whether the court committed reversible error when it accepted “guilty” verdicts on a greater offense after the jury rendered “not guilty” verdicts on lesser included offenses. We shall add facts as they pertain to our discussion of each issue.

DISCUSSION I. Appellant’s first argument implicates the right of a criminal defendant under the Sixth and Fourteenth Amendments to the United States Constitution, Maryland’s common law, its Declaration of Rights, and its Rules of Procedure, to be present at every stage of the trial. Appellant contends that the trial court denied him this right when it refused his counsel’s ¹³⁰ request that he be present for a conference concerning whether the State had committed a discovery violation. We conclude that the court correctly ruled that appellant was not entitled to be present at that conference. A. Setting the stage Defense counsel brought the alleged discovery violation to the attention of the trial court, the Honorable Michael D. Mason, during a break in proceedings after the jury was selected but before it was sworn.

In the presence of appellant, defense counsel informed the court that the State had included one Christian Phillips on its witness list. Counsel reported that she had asked the prosecutors about Phillips’s identity and was told that he was a “jailhouse snitch” who had come to the State’s attention two weeks before trial. The prosecutors told defense counsel that Phillips was prepared to testify that appellant confessed to Phillips his involvement in the shootings. Defense counsel denied receiving any information about Phillips before trial and objected to the State’s calling him as a witness. 2 The prosecutors in turn explained that they had learned of appellant’s statement to Phillips through Phillips’s counsel.

After interviewing Phillips, they informed defense counsel by letter that he might be called as a witness. Defense counsel denied receiving the letter. Before the matter was resolved, the prosecutors said that they had not yet decided whether they would be calling Phillips to testify. The court therefore tabled further discussion until such time as the State decided that it wanted Phillips to testify.

The jury was sworn soon thereafter and trial began. On the evening of the second day of trial, after the jury had been excused for the day, the prosecutors notified the court that the State wanted Phillips to testify. The defense again objected. ¹³¹ As the court prepared to take up the issue, defense counsel asked that appellant, who was then still in the courtroom, be permitted to be present for the discussion. The court denied the request, reasoning that no testimony would be taken; the question for decision was simply whether, based on the State’s proffer of what Phillips might say, the State would be permitted to call him; and, if Phillips were permitted to testify, appellant would have his right of cross-examination.

The court then told the sheriffs that they could “take [the defendant] because it is close to 6:00.” The discussion turned to whether and when the State had informed the defense that Phillips might be a State’s witness. While explaining how Phillips had come to the State’s attention, the prosecutors proffered what he would say if permitted to testify. The defense again disputed the State’s assertion that it had informed the defense promptly upon learning that Phillips might be a State’s witness. Defense counsel argued that it was “patently unfair” to allow the State to call Phillips, pointing out that the defense had been given no opportunity to intei'view him.

The court ruled that Phillips could testify, but only after the defense had a chance to speak with him. The court and counsel then discussed the extent to which Phillips could be impeached with prior convictions. When that issue was resolved, the conference ended. The defense interviewed Phillips before he testified on the following day.

B. The Constitutional and Common Law Principles Involved The Sixth Amendment to the United States Constitution provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.... ” The right of confrontation is made applicable to the states through the Fourteenth Amendment, Pointer v. Texas, 380 U.S. 400, 403 , 85 S.Ct. 1065 , 13 L.Ed.2d 923 (1965), and encompasses the right of the criminal defen ¹³² dant “to be present in the courtroom at every stage of his trial,” Illinois v. Allen, 397 U.S. 337, 338 , 90 S.Ct. 1057 , 25 L.Ed.2d 353 (1970). The federal constitutional right to be present, though based to a large extent upon the Confrontation Clause, also has a due process component. That is, the right is not restricted to situations in which the défendant is “actually confronting witnesses or evidence against him,” but includes all trial-related proceedings at which the defendant’s presence “has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge.” United States v. Gagnon, 470 U.S. 522, 526 , 105 S.Ct. 1482 , 84 L.Ed.2d 486 (1985) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06 , 54 S.Ct. 330 , 78 L.Ed. 674 (1934)). In addition to the protections afforded by the federal constitution, a criminal defendant’s right to be present at all stages of trial is one recognized at common law, and is preserved by Articles 5 and 21 of the Maryland Declaration of Rights.

See Tweedy v. State, 380 Md. 475, 490-91 , 845 A.2d 1215 (2004); Pinkney v. State, 350 Md. 201, 209 , 711 A.2d 205 (1998); Stewart v. State, 334 Md. 213, 224 , 638 A.2d 754 (1994); Bunch v. State, 281 Md. 680, 683-84 , 381 A.2d 1142 (1978). Maryland Rule 4-231 implements the right to be present. Tweedy, 380 Md. at 491 , 845 A.2d 1215 . The rule provides, in pertinent part: (a) When presence required.

A defendant shall be present at all times when required by the court. A corporation may be present by counsel. (b) Right to be present — Exceptions. A defendant is entitled to be present at a preliminary hearing and every stage of the trial, except (1) at a conference or argument on a question of law; (2) when a nolle prosequi or stet is entered pursuant to Rules 4-247 and 4-248; or (3) at a reduction of sentence pursuant to Rules 4-344 and 4-345. ¹³³ As subsection (b)(1) of Rule 4-231 makes clear, a defendant is not entitled to be present “at a conference or argument on a question of law.” 3 This subsection (as well as subsections (2) and (3)) embodies the recognition that the constitutional and common law right to be present is not absolute. 4 Rather, the question of whether the defendant’s right to be present extends to a particular proceeding, such as a bench conference, is answered by reference to whether the content of the proceeding relates to the function of the right.

As Justice Cardozo wrote for the Supreme Court of the United States in Snyder v. Massachusetts, 291 U.S. 97 , 54 S.Ct. 330 , 78 L.Ed. 674 (1934), the Constitution does not assure “the privilege of presence when presence would be useless, or the benefit but a shadow.” Id. at 106-07 , 54 S.Ct. 330 . Snyder involved a defendant on trial for murder who claimed that his right to due process was abridged when he was denied the right to be present at the jury’s inspection of the crime scene. The prosecutor (as well as defense counsel) was permitted to point out to the jury the “essential features” of the crime scene. Id. at 110 , 54 S.Ct. 330 .

The Supreme Court held that due process was not violated because the defendant could not have been of assistance to his counsel, had he been present. Id. at 116-22 , 54 S.Ct. 330 . ¹³⁴ The Supreme Court applied this analysis in Kentucky v. Stincer, 482 U.S. 780 , 107 S.Ct. 2658 , 96 L.Ed.2d 631 (1987). That ease involved a challenge to the defendant’s, but not his counsel’s, exclusion from a chambers hearing at which the trial court made a preliminary ruling on the question of whether two young children were competent to testify. The Supreme Court held that the exclusion of the defendant from this conference did not compromise his right to confront the witnesses through cross-examination.

Id. at 740, 107 S.Ct. 2658 . As for the defendant’s assertion that he was deprived of due process, the Court restated in Stincer what it had said in Snyder : “[D]ue process clearly requires that a defendant be allowed to be present ‘to the extent that a fair and just hearing would be thwarted by his absence.’ ” 482 U.S. at 745 , 107 S.Ct. 2658 (quoting Snyder, 291 U.S. at 108 , 54 S.Ct. 380 ). Consequently, the Stincer Court stated, “a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure.” Id. The Court concluded that the defendant had not been denied due process because his presence did not bear “a substantial relationship to [the] defendant’s opportunity better to defend himself at trial.” Id. at 746, 107 S.Ct. 2658 .

The Court relied upon the facts that the questions asked of the child witnesses at the hearing did not relate to the crime itself, many of the questions were repeated at trial, the children were subjected to “full and complete” cross-examination at trial, and the judge’s preliminary ruling was subject to reconsideration in light of the witnesses’ trial testimony. Id. at 740-46, 107 S.Ct. 2658 . The Maryland cases follow this analysis when considering whether the defendant’s absence at a conference or argument of counsel worked a due process deprivation. See, e.g., Henry v. State, 324 Md. 204, 226-27 , 596 A.2d 1024 (1991) (holding that the defendant did not suffer a due process violation because he was unable to establish that his presence at any specific conference would have contributed to the fairness of the procedure); Brown v. State, 272 Md. 450, 476-77 , 325 A.2d ¹³⁵ 557 (1974) (holding that a chambers conference, at which the court and counsel agreed on how certain photographic evidence would be introduced, was not a stage of trial requiring the defendant’s presence because the matter discussed “bore no reasonable and substantial relationship to the opportunity of the [defendant] to defend”); Martin v. State, 228 Md. 311, 316-17 , 179 A.2d 865 (1962) (holding that a chambers hearing on a motion for directed verdict involved “a law argument” and therefore defendant’s presence was not required); Sewell v. State, 34 Md.App. 691, 698 , 368 A.2d 1111 (holding that a chambers conference on the State’s motion in limine that an informant’s identity not be disclosed at trial was “exclusively a discussion of law” and not a stage of trial requiring the defendant’s presence), cert. denied, 280 Md. 734 (1977); State v. Tumminello, 16 Md.App. 421, 436-37 , 298 A.2d 202 (1972) (holding that a bench conference concerning the admissibility of evidence was not a stage of the trial at which the defendant had a right to be present, even though facts were discussed).

We know of no case from the Court of Appeals or this Court holding that the question of whether a particular event is a “stage of trial” is answered differently under the Maryland Declaration of Rights or common law than under the federal Constitution. Neither, for that matter, do the cases interpreting Maryland Rule 4-231 (b)(1) (or its predecessor rules) suggest a broader interpretation of the right to be present for “a conference or argument on a question of law” than is given to the common law or constitutional rights. Moreover, because the rule does not define what constitutes a “conference or argument on a question of law,” we look to case law for the answer. See Md. Rule 4-231 Committee Note (noting that, “[ejxcept when specifically covered by this Rule, the matter of presence of the defendant during any stage of the proceedings is left to case law, and the Rule is not intended to exhaust all situations”).

We therefore determine whether appellant was entitled to be present for the discussion of Phillips’s testimony by resort to the test developed in Snyder and Stincer and applied in the Maryland cases. ¹³⁶ C. This case The trial court determined that the discussion concerning whether the State would be permitted to call Phillips in its case-in-chief was a conference on a “question of law,” at which appellant had no right to be present. The court’s ruling was correct. The conference covered two matters: (1) whether Phillips would be allowed to testify in light of the defense’s objection that his identity as a witness came too late; and — once the court ruled that Phillips would be permitted to testify — (2) the extent to which he could be impeached by prior convictions. No testimony was taken, “hence there was no involvement of the appellant’s right to confrontation and to assist in cross-examination.” Brown, 272 Md. at 476 , 325 A.2d 557 .

Further, appellant cites no authority, and we know of none, that entitles him to “confront” the State’s proffer of either the circumstances under which it learned of Phillips or what he would be expected to say about his conversation with appellant. We conclude, therefore, that appellant’s presence was not required to vindicate his Sixth Amendment right of confrontation. Neither did the exclusion of appellant from the conference violate due process. Appellant argues that he was entitled to be present because factual matter, and not merely law, was discussed.

He asserts that, had he been present, he could have assisted his counsel by countering the State’s proffer of what occurred between him and Phillips. To be sure, the State’s proffer included facts about Phillips’s expected testimony. Contrary to appellant’s contention, however, this does not alter the nature of the conference as one involving a question of law. We note, preliminarily, that both the crime scene view in Snyder and the competency hearing in Stincer had some factual content.

Yet, in neither instance was this determinative of the issue. Moreover, we recognized in Tuvvminello that there are times when a ruling on the admissibility of evidence “necessarily involve[s] some factual discussions.” 16 ¹³⁷ Md.App. at 436, 298 A.2d 202 . As we said in that ease, “it is difficult to conceive that [the] issue could be discussed in a vacuum without some reference to the facts of the particular case involved.” Id. at 436-37 , 298 A.2d 202 . The conference at issue in the case sub judice initially involved the question of whether the State had violated discovery.

Certainly the trial court’s decision on this question entailed its knowing the circumstances under which the State came to learn about Phillips and appellant’s purported confession to him. As the court said, “The -witness is not here, not going to be testifying and I am making a decision based upon a proffer of what a witness might say as to whether or not they should be permitted to produce this witness and call the witness or not.” The trial court did not expressly find that the State had violated discovery by choosing to inform the defense by letter, rather than orally, of Phillips’s existence as a possible witness for the State. The court nevertheless must have concluded that, for whatever reason, the defense did not know about Phillips until the eve of trial. The court therefore had to consider the appropriate remedy to afford appellant a fair trial.

It was quite reasonable and appropriate for the court, in doing so, to ascertain what Phillips’s testimony would be. We cannot conceive of how appellant’s presence would have assisted his counsel in argument on this discovery matter. Indeed, even had appellant been present and countered the facts contained in the State’s proffer, that would have had no bearing on the legal question the court had to decide at the conference, ie., whether the State should be permitted to call Phillips as a witness. In sum, the matters discussed at the conference bore no “reasonable and substantial relationship to the opportunity of the [defendant] to defend,” Stincer, 482 U.S. at 730 , 107 S.Ct. 2658 ; appellant could not have assisted in the decision making, Snyder, 291 U.S. at 105-08 , 54 S.Ct. 330 ; and he would have gained virtually nothing by being present at the discussion, Brown, 272 Md. at 477 , 325 A.2d 557 .

We hold therefore that ¹³⁸ the conference at which the court and counsel discussed appellant’s objection to Phillips’s testifying in the State’s casein-chief was a conference on a question of law, at which appellant had no entitlement to be present. It follows that the trial court did not err when it denied appellant’s request that he be present at that conference.

II

Appellant next takes issue with the trial court’s handling of a matter that arose when, at the close of the State’s case, none of appellant’s witnesses was immediately available to testify. He directs us to the court’s requiring at that time, and again thereafter, a proffer of what the testimony of the witnesses would be, and then deciding, based on the proffers, that two of these witnesses would not be permitted to testify. Appellant contends that the court’s actions violated his fundamental right to present a defense. We disagree.

The Sixth Amendment to the United States Constitution provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.” Article 21 of the Maryland Declaration of Rights establishes a similar right in the context of State criminal proceedings. Wilson v. State, 345 Md. 437, 445 , 693 A.2d 344 (1997). The Wilson Court quoted the Supreme Court’s decision in Washington v. Texas, 388 U.S. 14, 19 , 87 S.Ct. 1920 , 18 L.Ed.2d 1019 (1967), for the proposition that “ ‘[t]he right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies.’ ” 345 Md. at 447 , 693 A.2d 344 . The law recognizes, however, that “[t]he right of compulsory process, under both the Federal and State Constitutions, though fundamental, is not absolute.” Id. at 448 , 693 A.2d 344 .

A defendant does not have an “ ‘unfettered right to offer testi ¹³⁹ mony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence.’ ” Id, (quoting Taylor v. Illinois, 484 U.S. 400, 410 , 108 S.Ct. 646 , 98 L.Ed.2d 798 (1988)). Consequently, the right of compulsory process “is not violated if a court declines to subpoena, grant a continuance to locate, or otherwise assist in the apprehension or production of a missing witness” absent a showing that the witness’s testimony is both admissible and helpful to the defense. Id. As we shall explain, appellant was not deprived of the right to present his defense.

A. The developing contention As we have mentioned, none of appellant’s witnesses was present in the courtroom when the State concluded its ease-in-chief. And only one of them was available by pager to come to court to testify. The trial court noted at the outset of the discussion that it had specifically enjoined both parties to have their witnesses available in advance of when they might be needed, to avoid delaying the trial. Nevertheless, the court entertained the defense’s explanation for why the witnesses were not present.

One of the unavailable witnesses was Officer Wells. The defense conceded that the officer had not been served with a subpoena. 5 The court asked what testimony the defense hoped to secure from this witness. Counsel replied that she would question Officer Wells about the extent to which he or other officers had “followed up” on his interviews of uninvolved eyewitnesses to the shooting. The court pointed out that this testimony would be hearsay unless the persons interviewed were available to testify.

The court also noted that anything Officer Wells might say about inadequacies in his role or other officers’ roles in the investigation was irrelevant, because he was not the lead investigator. ¹⁴⁰ Following this, the court took a brief recess. When the proceedings resumed, counsel advised the court that one of the witnesses, Officer Patel, had arrived. At the State’s suggestion, the court asked the defense to proffer Officer Patel’s testimony. Counsel responded that she did not know precisely what the officer’s testimony would be, but her questions would be directed at ascertaining the bus schedule and route, and the bus driver’s inability to corroborate the altercation between appellant and the victims.

To this the court responded that nothing proffered “would be admissible through [Officer] Patel,” because his expected testimony would be either inadmissible hearsay or irrelevant. The court decided to release Officer Patel. The court, however, allowed the defense until the following morning to summons Officer Wells to court. Upon reconvening the next morning, the court inquired if appellant was able to secure Officer Wells’s attendance.

The court confirmed that the officer had not been subpoenaed before trial and that the defense could not secure his attendance that day. The record does not reflect that appellant asked for a continuance or that the State be compelled to produce Officer Wells. Even so, the court said: “[U]nder the circumstances, I am not going to require the State to produce him, and I am not going to delay the trial to bring him down here, particularly in light of the Court’s determination that based upon the proffer, nothing he has to say would be admissible.” After discussion on other matters, the defense advised the court that a “civilian” witness, Ms. Blizzer, was now in court and prepared to testify. Again the court asked for a proffer of the witness’s testimony.

Defense counsel objected to this, but nevertheless responded that Ms. Blizzer would testify from personal knowledge that one of the victims, Nicholas Watson, frequented the area where the shooting occurred and was known for “being raucous and hooting at people.” Counsel explained that this testimony would rebut Watson’s testimony concerning his good reputation in the community. ¹⁴¹ The court recognized that Watson’s character trait for truthfulness was at issue because he