McLennan v. State

MURPHY, J. In the Circuit Court for Howard County, a jury convicted Omar Nathan McLennan, Petitioner, of armed robbery. Although he concedes that the State’s evidence was sufficient to establish that he committed that crime on November 29, 2005, Petitioner argues that he is entitled to a new trial on the ground that (in the words of his brief), “the trial court’s ruling, excluding the testimony of Mr. [Gordon] Smith and Mr. [Douzoua] Nado, deprived Petitioner of a fair trial.” After the ³³⁷ Court of Special Appeals affirmed the conviction in an unreported opinion, Petitioner filed a petition for writ of certiorari in which he presented this Court with a single question: Did the trial court err in refusing to allow defense witnesses to testify on Petitioner’s behalf? We granted that petition. 407 Md. 529 , 967 A.2d 182 (2009). For the reasons that follow, we hold that the Circuit Court (1) was not clearly erroneous in finding that Mr. Smith and Mr. Nado were “alibi” witnesses, and (2) did not abuse its discretion to exclude their testimony on the ground that the defense had failed to comply with the requirements of Md. Rule 4-263(d)(3). 1 We shall therefore affirm the judgment of the Court of Special Appeals.

Background The opinion of the Court of Special Appeals includes the following background information: On November 29, 2005, at some time after 9:00 P.M., [the victim], a “pizza driver” for Waterloo Pizza and Subs, was robbed at gunpoint by two men. Taken from him was approximately $250, a pizza, and a paper bag containing chicken tenders. * * * As soon as [Officer Thomas Townsend] received the report of the robbery, he responded immediately. As he approached the area of the crime he observed a pick-up truck meeting the description furnished by [the victim]. He activated his emergency equipment and followed the pick-up truck for about two thirds of a mile.

When Officer Townsend ultimately stopped the pick-up truck, he placed [Petitioner] and Pedro Mendez in handcuffs ³³⁸ and seated them on the grass to await the arrival of [the victim]. The third key State’s witness was Pedro Mendez, who ... testified that on November 29, 2005 at about 9:00 P.M. he was driving his pick-up truck on the street when he saw [Petitioner] and [Petitioner’s] friend Darnell Mann, both of whom he knew, beckoning him to stop. They asked him for a ride. When he agreed, they asked him to wait several minutes.

When a short time later they entered the pick-up truck, Darnell was holding a pizza box. Both passengers said, “Come on, let’s go.” As Mendez then drove down the street, he saw police lights behind him. As he started to slow down, Darnell jumped out [of] the truck with the pizza box. When the pick-up truck was finally pulled over, he and the appellant were placed under arrest____ The State’s evidence showed that [Petitioner] was in that pick-up truck continuously from the time it left the robbery scene until it was stopped by the police a few minutes later and a short distance away * * * [Petitioner] testified that on November 29, 2005, his mother dropped him off on Overheart Lane, near the crime scene, at about 9:30 P.M. so that he could visit a friend, Bradley Thomas.

Because Bradley Thomas’s parents did not allow him to have friends over, [Petitioner] left the house. He then ran into a friend, Robert Jones, and asked him for a ride home. When Jones was unable to help him, [Petitioner] proceeded to the Quiet Hours apartment complex and knocked on the door of a friend, Michael McGill. When no one answered the door, [Petitioner] walked back toward Overheart Lane.

At that point a pick-up truck pulled over to where [Petitioner] was standing. He recognized the driver as Pedro Mendez and asked him for a ride. Mendez replied, “That’s cool,” and [Petitioner] entered the rear seat. The front seat was occupied by Ashley Davis, a woman whom [Petitioner] knew.

A short time later a police cruiser began to follow them and activated its emergency lights. When Mendez slowed ³³⁹ the pick-up truck down, Ashley Davis, who was wearing a black and red “hoodie,” jumped out and fled the vehicle. [Petitioner] stated that Darnell Mann was not in the pick-up truck at any time of which he was aware. A short distance further on, Mendez stopped the vehicle and he and [Petitioner] were arrested. Under [Petitioner’s] version of the events, the pick-up truck’s presence at the scene of the robbery would have to have been at a time prior to when [Petitioner] asked for a ride and got into the vehicle.

Robert Jones testified and corroborated at least part of [Petitioner’s] alibi. He testified that at approximately 9:45 to 10:00 P.M. on November 29, 2005, he saw [Petitioner] come out of a house on Overheart Lane. [Petitioner] asked whether Jones could give him a ride home but Jones replied that he did not have a car. They spoke for about ten minutes and [Petitioner] then left Jones’s presence. Seth Burgess, a friend of [Petitioner], also testified for him.

He said that “around nine or ten” that night he saw [Petitioner] approach Pedro Mendez and ask for a ride. [Petitioner] entered the vehicle calmly and quietly and the witness did not see Darnell Mann in the vehicle. McClennan v. State, No. 1172, Sept. Term, 2007, slip opinion pp. 1-6 (filed Nov. 24, 2008). Petitioner’s first trial ended with a hung jury. After a series of postponements, the trial that resulted in Petitioner’s conviction commenced on April 23, 2007, which is the date on which Petitioner’s trial counsel identified Mr. Smith and Mr. Nado as additional defense witnesses.

Jury selection was completed on the morning of April 23, 2007. Prior to opening statements, Petitioner’s trial counsel argued that the Circuit Court should permit the defense to call Mr. Smith and Mr. Nado even though those two potential witnesses had not been identified before that date. That argument resulted in a colloquy that occupies thirty two pages of the trial transcript, the relevant portions of which are as follows: ³⁴⁰ [PETITIONER’S COUNSEL]: .... I don’t believe that any of them are really alibi witnesses and this is why.

I mean, I think the State’s theory is that this robbery occurred somewhere around nine-forty-five. These witnesses who I will be calling, none of them are going to be saying, oh, at exactly that time, during that two or three-minute period when this robbery occurred, we were with Omar McLennan. What they are all going to say is we saw Omar McLennan during the events of that evening. You know, one of them spoke to him for a little while at this time, one of them spoke to him for a little while at that time, okay.

I don’t, based on what they have said to me, anticipate any of them saying that they were with him, that he was with them at the precise time of this robbery. So I don’t see any of them as alibi witnesses. THE COURT: Well, if they are not alibi "witnesses then what relevance do they have? [PETITIONER’S COUNSEL]: They have relevance because they were with him shortly before the robbery when he was engaging in activity that is consistent with his version of what he was doing that night, and that is hanging around Owen Brown and, at some point, looking for a ride home. I mean, what he was doing in the minutes before the robbery, I certainly think is relevant.

THE COURT: All right, this is what I require of you. I’m going to ask you to give me a specific proffer of what each of these witnesses would say, because I can’t just assume, for the sake of argument, that they are not alibi witnesses. From what I hear, they sound like alibi witnesses and if I determine that they are alibi witnesses, then we need to go to the issue of whether or not they are going to be prohibited from testifying. [PETITIONER’S COUNSEL]: Two of them will say that they saw Mr. McLennan and that Mr. McLennan was in the ³⁴¹ area, certainly in close proximity to where the robbery took place, and that he asked one of the two of them for a ride. That one, that’s Gordon Smith, agreed to give him a ride but said he couldn’t give him a ride at that moment, that he had to do something else first.

I would say Gordon — I believe Gordon Smith would testify that that conversation occurred around nine-thirty, maybe nine-thirty-five. THE COURT: All right. Who is the other witness? [PETITIONER’S COUNSEL]: Douzoua Nad[o] would testify that he was present when Mr. McLennan asked Mr. Smith for the ride and he saw all of this. So he was just a witness to those same events.

THE COURT: All right. [PETITIONER’S COUNSEL]: He then goes in the house; he doesn’t see anything more. Mr. Smith then comes back, after he does whatever it is that he has to do, and when he gets back, Mr. McLennan is gone. So he doesn’t know, firsthand, what happened. THE COURT: When does he get back? [PETITIONER’S COUNSEL]: He drives back.

THE COURT: What time? [PETITIONER’S COUNSEL]: Oh, he says he’s gone no more than ten minutes, so nine-forty-five. * * * THE COURT: ... [W]hen was the first time that you advised the State of ... Mr. Nado, and Gordon Smith? [PETITIONER’S COUNSEL]: Today, Your Honor. Today is the first day I had ever even heard the names Gordon Smith and Mr. Nado. THE COURT: Now, who was it that provided you with those names? [PETITIONER’S COUNSEL]: Mr. McLennan’s mother approached me and said that, coincidentally, Mr. Smith has a case scheduled today and that as they got to talking about that night, the night of the incident, that Mr. Smith recalled ³⁴² being present that night and assumed that this case had been long over with.

He knew because he remembered the incident where Mr. McLennan got arrested and so he then told her, she then told me. In the course of speaking to Mr. Smith, he then advised that there was this other individual, Mr. Nado, who also was out there that night and they were going to try to contact him and see if he would be willing to come in and they did and he did come in. THE COURT: And this is the first time, in your preparation of the case and your discussion with prior counsel and your review of records and review of the transcript, and I’m not asking for work product or attorney-client — or matters covered by the privilege, but this is the first time that you heard that a person by the name of Gregory Smith asked your client or your client asked him for a ride on that night? [PETITIONER’S COUNSEL]: Gordon Smith, yes, Your Honor. Yes, Your Honor.

That was never mentioned to me by Mr. McLennan; that was never mentioned to me by his mother. I have spoken to Stephen Friedman on a couple occasions regarding this case, he never mentioned it to me. THE COURT: Just out of the blue, this Mr. Smith ran into your client’s mother today in the courthouse and reminded her of something that even your client didn’t recall? [PETITIONER’S COUNSEL]: Well, I’m not going to say that he didn’t recall it. He didn’t mention it, yes.

Now I’m sure that all of the things that your are pointing our are things that the State is going to certainly argue and, you know, I don’t think that I should be precluded from calling these witnesses just because maybe it seems, on the surface, like their testimony will be lacking in credibility based on the reasons that the Court has suggested. THE COURT: Well, it seems to me, particularly when we are talking about Smith and Nado, that the only value that they have is to show that your client was at a time, at a ³⁴³ place, and circumstances that make it unlikely that he was involved in a robbery that happened ten minutes later. [PETITIONER’S COUNSEL]: Exactly, that’s correct. THE COURT: And that kind of sounds like alibi to me. How is that not alibi evidence? [PETITIONER’S COUNSEL]: Well, I mean, I guess if— let me think here.

I’m trying to think of an analogy, Your Honor. You know, if there is evidence that a savage murder took place at, you know, ten o’clock, and, you know, in a certain location, and there is evidence that [Petitioner] in that case was present near that location fifteen minutes before the savage murder took place, and I can call witnesses who will testify, yes, I saw him and his demeanor seemed perfectly normal, I spoke with him, nothing seemed unusual about him, he didn’t seem upset about anything, I think that would be relevant testimony and I don’t think it would be alibi evidence because certainly physically it would have been possible for the person to go commit that crime, but I still think that the fact that the person’s demeanor was, as I’ve just mentioned, would be relevant and something the Defense could present to show it is less likely that he committed this crime than it is that he did commit the crime. Less likely that he did commit it than that he didn’t, I mean. THE COURT: But if the added part of that was that the timing of the observation was such that it is unlikely that the person was physically involved in it — you see, what your proffer, what your argument is going to be, if it is consistent with your proffer, is, ladies and gentlemen, my client couldn’t have been involved in this because a mere ten minutes before the robbery he was seen talking to Gordon Smith and he was talking about getting a ride.

He wasn’t talking about planning a robbery, he wasn’t talking about, I don’t know, getting a mask or whatever it is. He was talking about getting a ride. And how likely is it that the Defendant could have talked to Mr. Smith gotten hooked up with Mr. Mendez and committed this robbery? It is not ³⁴⁴ likely because we are talking about a ten-minute window here.

That is the inescapable argument that I have heard so far and I think that is a little bit different than arguing demeanors in your hypothetical. * * THE COURT: [W]e have a situation where [Petitioner] was arrested and charged with this quite some time ago. Initial counsel, Mr. Friedman, entered his appearance at the end of January 2006. The State’s first letter and demand for discovery under Maryland Rule 4-263 was sent on February 1, 2006, at which point in time included in there was a specific demand for alibi witness information. Then this matter proceeded to trial on May 3, 2006.

There was a hung jury on that date. There was no alibi defense presented at that trial, as far as I know. These witnesses were not presented at that trial. There was a retrial date set for June 26, 2006, that was postponed at the request of the State.

On September 21, 2006, the Court signed an order striking the appearance of private counsel because, apparently, the financial arrangements had broken down between counsel and client. The October 4, 2006 trial date that had been set in June was postponed by [Petitioner] because he was without counsel. The November 9, 2006 trial date was postponed by [Petitioner] because he was without counsel. The February 13, 2007 trial date was postponed by [Petitioner] because he had counsel but had just gotten the Office of the Public Defender. [Petitioner’s counsel] was identified as a panel attorney at some point on or about February 21, 2007.

I saw that because in another request for postponement filed by [Petitioner], there was a request by Mr. Willemin of the Public Defender’s Office — there was a request to move the scheduled trial date of April 16, 2007 to April 23,2007. Now, so [Petitioner’s counsel], by his representations earlier, has had the case at least the last forty-five days and now, today — and this isn’t directed at [Petitioner’s Counsel] ³⁴⁵ individually — now, today, the Defense produces the names of [Mr. Smith, Mr. Nado, Mr. Seth Burgess, and Mr. Bradley Thomas]. They have no use if they are not alibi witnesses. Telling where he is or what he is doing is not relevant in this setting as I have understood the proffers, except to say look at where he was, look at what he was doing at such and such a time, he couldn’t have moved himself to another point, gotten himself with people, and committed a robbery in that limited time.

That is the only use for it. I think it is an alibi. The proffer, in my opinion, is that of an alibi witness. Things haven’t changed.

I mean, Mr. Smith had this conversation with [Petitioner] back on November 29, 2005 and the fact that [Petitioner] didn’t bring it up is — well, I’m not going to comment on that, but for Mr. Smith to randomly run into [Petitioner]^ mother in the hallway and advise her of that which, you know, [Petitioner] was part of, I find that it is unlikely. Now, the violation here in terms of not disclosing this is a substantial violation. Things haven’t changed since November 25, 2005 in terms of who Mr. McLennan was interacting with. For this to be brought to Counsel’s attention on the day of, in my mind, constitutes something more than a mere technical violation.

The reason for the violation is that the witness had to remind [Petitioner’s mother of his involvement rather than [Petitioner] and I find that difficult to accept. Obviously, both sides are prejudiced by either excluding or not excluding an alibi witness. If both sides weren’t prejudiced by it, there would be an agreement. But given the nature of an alibi defense, it is the State that suffers significant prejudice in that they don’t know who these people are.

They haven’t had an opportunity to investigate them. They clearly — Mr. Smith is involved or at least — I don’t want to say clearly, there is some indication that Mr. Smith has some type of criminal background or else he wouldn’t have been here in the courthouse. Maybe he was here in support of friends. Maybe he was here pursuant to a civil matter, I don’t know.

But I find ³⁴⁶ that there is a significant prejudice to the State. Not to say that there isn’t a prejudice to [Petitioner]; however, there is significant prejudice to the State. Can it be