Prince v. State

NAZARIAN, J. I shot an arrow into the air, It fell to earth, I knew not where ... Henry Wadsworth Longfellow, The Arrow and the Song 1 In this appeal, we have not an arrow but a “trajectory rod,” which a police officer used to show the path a bullet took when the appellant, Joshua Prince, fired a rifle from above at his ex-girlfriend as she cowered behind the rear bumper of her car in a parking garage. Mr. Prince was charged with attempted murder and other charges, tried before a jury in the Circuit Court for Montgomery County, and convicted. On appeal, he challenges the circuit court’s decision to allow the State to introduce the testimony about the rifle’s firing pattern and the bullet’s trajectory through the roof and interior of her car.

He also contends that the trial court improperly denied his counsel’s request for a continuance to allow him to develop expert testimony regarding his mental state. We affirm. I. BACKGROUND Mr. Prince moved into the Bethesda apartment complex of his then-girlfriend, Allanna Garbe on August 28, 2010. Ms. Garbe had discouraged the move; she felt their relationship should move more slowly, but he apparently saw things differently and took an apartment one floor up from hers in the same building.

The transition went badly and, as we shall see, spiraled quickly from there: Mr. Prince felt “disappointed and upset” when Ms. Garbe did not help him move in, and Ms. Garbe expressed discomfort at how quickly he viewed the relationship as progressing. On the evening of September 1, 2010, she went to his apartment and, in a conversation that lasted thirty to forty minutes and that she later characterized ¹⁸³ as “peaceful,” she told him that she no longer wanted to be in a relationship. A few nights later, on September 3, 2010, Mr. Prince saw Ms. Garbe leave her apartment with a male friend. He sent her a series of text messages beginning around 10:00 p.m. asking what she was doing and telling her that he loved her.

His behavior escalated from there: he showed up at Ms. Garbe’s apartment within moments after she and her friend returned to her apartment (around midnight), and when she came out to speak with him, he seemed not to understand that she had broken up with him, then remained in the hallway twenty minutes after their conversation ended. Ms. Garbe felt uncomfortable and afraid, so her friend remained in her apartment with her through the night. Mr. Prince continued to send text messages that night and through the morning, finally culminating in a 4:46 a.m. text in which he stated, “You told me you loved me and hoped we could get married one day. You brought another man in your bed tonight.

How could you live with yourself?” Mr. Prince also had a conversation in the parking garage in the early morning hours with two other residents of the complex (whom he had never met), telling them in depth about the relationship and his dismay that Ms. Garbe chose to end it. The next morning, Ms. Garbe discovered that someone had vandalized her car during the night. The doors, trunk, roof, and hood of the car were dented and both the side mirrors had been ripped off. On the recommendation of police officers who responded to her call, she obtained a no-contact order against Mr. Prince that same day.

When Mr. Prince learned about the order, he asked Ms. Garbe by text to withdraw it. He said he did not believe that she had no other romantic interest, and he continued texting her throughout the evening. 2 For the remainder of Labor Day weekend, September 5 and 6, though, the two did not communicate. ¹⁸⁴ Sometime between 7:00 and 7:30 a.m. Tuesday morning, September 7, Ms. Garbe went to her car, which was parked on the third floor of the parking garage. She climbed in the driver’s side, but before closing the door she sensed movement, looked up, and saw Mr. Prince on a ramp between the third and fourth floors of the garage, where he “had just stooped down and had a rifle pointed at me.” 3 When asked to describe the rifle, she explained it was “[j]ust a very large gun that he had over one shoulder directly pointed at me.” (Emphasis added.) Ms. Garbe scrambled out of the car and hid behind the rear bumper.

The two or three times she looked up, she “saw [Mr. Prince] with the gun just pointed directly at [her], taking full aim at [her].” After she heard a gunshot, Ms. Garbe looked again and saw that Mr. Prince was no longer aiming at her, so she ran into the apartment building and called 911. Minutes later, she received a new series of texts from Mr. Prince: • “I never would have hurt you honestly”; • “I pictured my life without you and you with another man and I snapped”; • “I know I can’t take this back”; and • “I know I just threw away my life.” Ms. Garbe responded (having been told by the police to do so), and encouraged Mr. Prince to turn himself in, which he did. An investigation of the fourth-floor ramp in the garage uncovered a garment bag, a live round of ammunition, and a cartridge casing. Police also searched Mr. Prince’s apartment and found an open rifle case by his bedside.

Moreover, after hearing a recorded conversation between Mr. Prince (incarcerated at the time) and a friend, police interviewed the friend, ¹⁸⁵ who produced a box of ammunition that Mr. Prince had asked him to hide and from which three rounds were missing. The State charged Mr. Prince with attempted first-degree murder, first-degree assault, carrying a dangerous weapon with intent to injure, and failing to comply with a peace order. He underwent a mental health evaluation at Clifton T. Perkins Hospital Center by psychologist Inna Toller. In January 2011, Dr. Toller rendered a report in which she found him competent to stand trial and criminally responsible.

Although she acknowledged that Mr. Prince suffered from post-traumatic stress disorder (“PTSD”) from his military experience in Iraq as a medic, Dr. Toller concluded that it played no role in his conduct: “[Tjhere is no evidence that [his PTSD] symptoms caused him to have significant impairment in every day function.” She opined, based on how Mr. Prince acted on the morning of the incident, that “the PTSD and the adjustment disorder did not cause him to lack substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.” Trial was scheduled to begin on Monday, March 26, 2012. On the afternoon of Friday, March 23, 2012, Mr. Prince moved for a continuance. He argued that he had obtained a preliminary report from a psychologist, Rona Fields, Ph.D. (the “Fields Report”), in which, he said, she opined that Mr. Prince “most likely suffered” from PTSD at the time of the incident (emphasis added). 4 According to the motion, Mr. Prince had only recently been able to gather funds for Dr. Fields’s preliminary evaluation and she needed more time to complete testing and determine whether he might suffer organic brain damage or whether his PTSD contributed to the incident.

The State opposed the motion, citing the facts that the incident had taken place over a year and a half earlier, that there had already been an aborted plea deal, that the case had been continued twice already, and that Ms. Garbe objected strongly ¹⁸⁶ (even at the time of trial, Mr. Prince apparently still was attempting to contact her). The trial court denied the motion on the morning of trial, explaining (over five pages of transcript) that Dr. Toller had reviewed all the relevant history and documents, and had concluded Mr. Prince’s mental health issue had nothing to do with the events in question: the PTSD and the adjustment order did not cause him to lack substantial capacity either to appreciate the criminality of his conduct or to conform his conduct t'o the requirements of the law. Therefore, to a reasonable degree of medical certainty, Prince was found [by Dr. Toller] to be criminally responsible. The court noted that Dr. Toller believed Mr. Prince “had a clear secondary gain to avoid incarceration and be found not criminally responsible,” and, as a result, had diagnosed him with malingering.

For these reasons, the court found no good cause to continue the trial and it went forward as scheduled. The State presented seven witnesses in its case-in-ehief, beginning with Ms. Garbe and including two police officers whose testimony Mr. Prince challenges here. Detective Brian Stafford, who responded to the 911 call, interviewed Ms. Garbe, videotaped the scene, and documented the area where Mr. Prince stood at the time of the shooting. Officer Ryan Costello examined Ms. Garbe’s car after it was brought in to police for processing and, as part of his examination, placed “trajectory rods” through the bullet holes in the car and photographed the rods in place. 5 Neither Officer Costello nor Detective Stafford was offered or qualified as an expert witness.

The State had notified counsel for Mr. Prince two weeks before trial that it planned to call expert witnesses “in crime scene and trajectory” (Offi ¹⁸⁷ cer Costello) and “in weapons and ballistics” (Detective Stafford), but counsel for Mr. Prince moved in limine to preclude the testimony based on the State’s lack of formal or timely notice of the experts. At a hearing on the morning of trial, the State informed the court that it had intended to call Officer Costello as an expert, but had changed its mind: “[i]n reality, his testimony is really factual, so we have no problem ... we don’t need to qualify him as an expert, so we won’t.” In response, counsel for Mr. Prince acknowledged voluntarily that his motion was moot. The parties did not discuss Detective Stafford’s testimony at that point (the whole colloquy occupies less than a page of transcript), either by naming him or by talking generically about any ballistics testimony. When the time came for Detective Stafford to testify, he offered a detailed account—without objection from Mr. Prince’s counsel—about the live round found on the scene: Q. And could you please describe what type of ammunition that is?

A. It’s a 7.62 NATO full metal jacket round, standard military loading. Q. You say that like we should all know. Give us the numbers that you first said? A. 7.62 NATO.

Q. What does that mean? What is the 7.62? A. The 7.62 refers to the diameter of the bullet. Q. Okay.

A. It’s basically a 30 caliber bullet. NATO, it refers to the North Atlantic Treaty Organization. In the 1950s, NATO wanted to come up with a common round for all the member countries to use. This is the ammunition they standardized, largely because the United States insisted on a 30 caliber cartridge.

Q Okay. And what is the significance of the markings on here? A. These are what are called head stamp markings. They’re on the head of the case.

This one says NATO ¹⁸⁸ on it. There is a letter on there, F, and then there’s a number, which is 81.81 would be for the year of manufacture, the year that this ammunition was manufactured. Q. So in 1981? A. Yes.

And the F would identify the armory or the factory where it was made. Q. Okay, anything ... that you note of significance on [Exhibit] 32? A. Well, this doesn’t have a firing pin. Q. Oh, I’m sorry.

A. This has a primer, which is struck by the firing pin when you fire the round. Q. Okay, and is there anything of significance that would indicate how this bullet came to be ejected from a rifle? A. There is. There’s a small dimple or marking in the middle of the primer.

It’s consistent with where the firing pin would have struck the primer in order to fire the round. It’s not very deep. It’s really just a superficial mark, but it indicates to me that it was most likely a misfire. Q. Okay.

What’s this green stuff[ 6 ] that we’re seeing? A. On there? Sometimes the— [Counsel for Mr. Prince]: I would object, Your Honor. Can we approach?

THE COURT: Sure. (Bench conference follows:) [Counsel for Mr. Prince]: Your Honor, I would note an objection. It seems apparent that [the State] is qualifying ¹⁸⁹ Mr. Stafford as an expert in this case. She’s asking for him to draw conclusions.

I don’t know what his testimony is to proffer or what evidence was recovered from the scene. But at this point, she’s asking questions outside of what I believe are expert boundaries in regards to ammunition and markings as such on the bullets. [Counsel for the State]: Your Honor, it’s all contained within the police report. The types of ammunition, how the ammunition is observed to be— [Counsel for the State]: We’ll move on, but we feel it’s relevant. (Emphases added.) Later in his testimony, Detective Stafford revisited the live round: [Counsel for the State]: Okay.

Detective Stafford, very briefly, what does a misfire mean? A. It means you pull the trigger and a round doesn’t go off. It could be attributable to a number of things, either the primer that’s in the base of the cartridge might be bad and just doesn’t go off. It can also be [attributed] to a malfunction of the firearm.

Sometimes if you’ve got like a dirty firing pin channel, the firing pin will come forward far enough to actually strike— [Counsel for Mr. Prince]: Objection, Your Honor. THE COURT: Same basis? [Counsel for Mr. Prince]: Same basis, Your Honor. THE COURT: Overruled. (Emphasis added.) Detective Stafford went on to provide further detail regarding the officers’ investigation of the scene.

Before Officer Costello testified, counsel for Mr. Prince objected to admission of the photographs of Ms. Garbe’s car that showed the trajectory rods the officer had placed in the bullet holes. According to his counsel, “the trajectory is all speculation in terms of the path of the bullet and whatnot.” Counsel for the State responded that the testimony was not ¹⁹⁰ expert testimony, and specifically that Officer Costello would testify only to fact information about the rods’ placement: what these yellow rods are and what they’re used for. And that they placed them to follow the path that the bullet took through the car. And that it ended, went through the bumper here and ended on that metal place.

And again, he’s not testifying as an expert. The Court ultimately determined that the placement of the rods was not a subject of expert testimony, and clarified the universe of appropriate testimony from Officer Costello: THE COURT: But this doesn’t require expert testimony. The testimony will be that they looked at the car. That there was a hole in the roof.

That they put these rods through the hole. That it came out inside the car. There was a hole in the back seat. They put the rod through that.

It went all the way through. The testimony will be that they didn’t make these holes. They didn’t drill them in there. THE COURT: But you have to stay away from ... any sort of technical language as regards to ... trajectory and that sort of thing.

THE COURT: Now, counsel [for Mr. Prince], for the record you obviously need to make your objection at the point that they are offered. [Counsel for Mr. Prince]: Yes, Your Honor. THE COURT: But I will overrule the objection. [Counsel for Mr. Prince]: Yes, Your Honor. THE COURT: But you need to make a good record. (Emphasis added; omitting interjections from State’s counsel.) Officer Costello testified that he examined Ms. Garbe’s car at the vehicle processing facility and performed a “reconstruction” analysis, explaining—again without objection from Mr. Prince’s counsel—what that meant: ¹⁹¹ A. Meaning basically I wanted to or attempted to show trajectory or the path that was taken by a suspected bullet through the vehicle.

Q. And do you use any tools to do that? A. Yes, trajectory rods. Q. What is that? A. So they’re basically just standard rods that you kind of place through holes or in this case suspected bullet holes to show the directionality of travel, the path of travel.

Q. I’m going to show you what’s been marked as State’s [Exhibits, the photographs]. Can you identify those? A. Yes, I can. Q. And what are they?

A. Those are photographs that I took on that day. Q Generally, what are they of? A. Of the trajectory rods that I spoke of, just now. Q. And the trajectory rods that are in those photographs, did you place them where they are in those pictures?

A. I did. Yes. After the State moved the photographs into evidence, counsel for Mr. Prince objected for the first time. The court overruled his objection and Officer Costello proceeded to explain how he placed each trajectory rod through a suspected bullet hole—first through the roof of the car, next through the driver’s headrest, next through the rear seat on the driver’s side, and finally through the rear of the trunk and the interior bumper of the vehicle.

Again, this testimony came in without objection from counsel for Mr. Prince until the State sought to move the photographs into evidence. After the close of the State’s case, Mr. Prince moved for a judgment of acquittal that the court denied. He then rested without testifying or putting on any evidence. The jury convicted Mr. Prince of all charges, and after a sentence review hearing, the court imposed a sentence of life with all ¹⁹² but 25 years suspended on the conviction for attempted first-degree murder, and concurrent sentences on the remaining counts.

He was committed to Patuxent Institute, ordered to serve five years of supervised probation on release, and was to have no contact with Ms. Garbe. He filed a timely appeal.

II

DISCUSSION Mr. Prince argues on appeal that the trial court should not have permitted Detective Stafford and Officer Costello to testify as lay witnesses regarding information that was properly the subject of expert testimony. 7 We take each officer’s testimony in turn, but before reaching that question, we address as to each the State’s argument (with which we agree) that Mr. Prince’s counsel failed to lodge timely objections to the testimony. As to Mr. Prince’s second claim, that he was entitled to a continuance, we conclude that because one expert had already determined he was competent to stand trial, and in light of the timing of his request, the trial court properly exercised its discretion not to allow him another opportunity, literally on the eve of trial, to try to rebut that finding. A. The Trial Court Properly Admitted The Testimony Of Detective Stafford And Officer Costello. We start by clarifying the issues the two law enforcement witnesses have in common and how they differ.

Mr. Prince claims that both officers inappropriately testified as experts, and that the “cumulative prejudicial effect” of their testimony ¹⁹³ requires reversal. A close reading of the transcript and the parties’ briefs reveals, though, that the State really isn’t contesting the characterization of Detective Stafford’s testimony as expert testimony and that Officer Costello didn’t offer expert testimony at all. And in any event, we agree with the State that these objections were not preserved as to either witness. 1. Detective Stafford Mr. Prince argues that Detective Stafford’s testimony about the alleged misfire was expert testimony and “should not have been admitted over [djefense [cjounsel’s objections.” According to Mr. Prince, these objections were “repeated” throughout the State’s direct and redirect examinations of Detective Stafford.

The State views the transcript differently, arguing that Mr. Prince did not preserve the question of its admission for review given the timing of his objections and, to the extent he did, its admission was harmless. We assume without deciding that the testimony constituted expert testimony, but we agree with the State that Mr. Prince failed to object to the testimony in a timely manner at trial, and therefore failed to preserve these arguments. Moreover, the evidence showed not just the misfire but that Mr. Prince affirmatively fired a second bullet which, combined with Ms. Garbe’s testimony that Mr. Prince took aim directly at her and the remaining evidence the State introduced at trial, rendered harmless the admission of any testimony relating to the misfire. First, Mr. Prince’s characterization of his counsel’s objections does not square with the trial transcript.

Although counsel did object on occasion, the objections were sufficiently delayed that they did not preserve his objections regarding the expert (or not) character of Detective Stafford’s testimony. Maryland Rule 4-323(a) states 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 objection become apparent.” (Emphasis added.) We agree with Mr. ¹⁹⁴ Prince that there is no bright-line rule to determine when an objection should be made. See Holmes v. State, 63 Md.App. 159, 164 , 492 A.2d 351 (1985). But the objection must come quickly enough to allow the trial court to prevent mistakes or cure them in real time: The requirement of a contemporaneous objection is a necessary and salutary one, designed to assure both fairness and efficiency in the conduct of trials.

A party cannot be permitted to sit back and allow the opposing party to establish its case, or any part of its case, through unchallenged evidence and then, when it may be too late for the opposing party to recover, to seek to strike the evidence. The “sporting theory” of trial does not go that far. Perry v. State, 357 Md. 37, 77 , 741 A.2d 1162 (1999) (emphasis added). Here, counsel did “sit back” until it was too late.

When Detective Stafford was called to testify, counsel let things go on for quite some time before he lodged any objections relating to the expert character of the testimony. He did not object when the State first called the detective to the stand, throughout the entirety of his qualifications (including his familiarity with firearms), or during his testimony about the investigation of this incident until after the State’s question about the “green stuff.” By then, Detective Stafford was well into and then well past his testimony relating to the misfire, and the objection came too late to preserve the issue for appeal. Indeed, counsel for the State even signaled, wittingly or not, that the detective’s testimony could require greater than a layperson’s knowledge. After he described the ammunition as a “7.62 NATO full metal jacket round, standard military loading,” counsel stated “You say that like we all know.” (Emphasis added.) Detective Stafford responded with further detail about the markings and explained that the “dimple” in the middle of the primer indicated a misfire.

Mr. Prince’s counsel objected only after the State had moved on to ask about the green discoloration on the live round, and even then ¹⁹⁵ objected only to the pending question about the “green stuff.” 8 At that time the court neither sustained nor overruled the objection, and the State simply “moved on.” Counsel for Mr. Prince did not ask for any curative instruction or a ruling on the admission of Detective Stafford’s testimony. And when counsel objected several pages later to Detective Stafford’s testimony about the misfire (and then in the course of his answer, not when the State asked the question, “what does a misfire mean”), that area had already been covered and admitted on direct. By then, the claimed “damage” had already been done—that is, the State’s question about the misfire simply repeated a question that had already been asked and answered without objection, rendering the