Smiley v. State

MOYLAN, J. Forfeiture by wrongdoing is a recent and, indeed, incongruous recruit to the ranks of the hearsay exceptions. Its energizing focus is not on the inherent trustworthiness of the ⁴ hearsay declarant but on the inherent skulduggery of the hearsay opponent. An Enigmatic Factual Background The appellant, Marcus Lee Smiley, was convicted in the Circuit Court for Wicomico County by a jury, presided over by Judge D. William Simpson, of the attempted murder in the first degree of Travis Green and related assault and handgun offenses. He was sentenced to a term of life imprisonment plus ten years.

There is an obvious back story linking the three leading characters in this criminal drama, but the trial record is frustratingly obscure as to what exactly that narrative thread might be. What we do know is that the appellant, Marcus Lee Smiley, was a drug dealer. We also know that the man he shot for no apparent reason, Travis Green, was also a drug dealer. What is missing is a motive.

As unenlightening as the trial testimony is, however, it will help to frame the appellate contentions that follow. At the time of the shooting, December 10, 2011, Travis Green had just spent the night at 729 Dennis Street in Salisbury, the home of Amanda Faulcon. Ms. Faulcon is the mother of Green’s three young children, who live at that address with their mother. Just after arising, Green walked out the back door, stood on the back steps, and just looked around, while smoking a cigarette.

At that point, he “observed this guy sitting on the next step, to the left.” He was describing the “house next door to Amanda’s, to the left, an abandoned house.” Green said that he did not “know him personally,” but he identified that person in the courtroom as the appellant. Green described the appellant’s behavior. Yeah, he was just sitting there, looking a little bogie, crazy, looking crazy and everything, I didn’t pay it no mind, you know, when I went there before, in the past I’ve seen people sitting on that back step and I, you know, it was none of my business, I didn’t pay him no mind. ⁵ Amanda then called Green back in the house as she knew that he was about to leave. Green’s truck was parked behind Amanda’s house.

He went out the rear door and approached the front of the truck. As he did so, the person who had been sitting on the steps next door came up to him and asked an innocuous question. As Green opened the driver’s side door, that individual suddenly fired a shot at Green. Then that’s when he was saying what he said to me, Did you see where he went?

And I looked back and I just, like, shook my head, like, you know, I didn’t know what he was talking about. And then he fired a shot. (Emphasis supplied). Green attempted to escape the fire by sliding across the front seat of the truck from the driver’s side to the passenger’s side.

The shooting continued. A. I jumped in the truck, as soon as I felt the shot to my arm I jumped in the truck to the, I tried to, you know, try to, I didn’t know what he was, you know, what this guy was doing. Q. When you jumped in the truck, what did you try to do? A. Slide out the passenger door, and I did, but he fired a shot obviously over the, over the, you know, towards my way, when I was trying to get out of the truck, and I slid out, and I looked up and he was trying to put on his mask.

And I tried to dart, I had time enough to run back in the house from that point, from the, because you see in the truck, from the truck door the back door was right there, but I didn’t want to take a chance and run back in the house and this fool running behind me and my kids in there, and Amanda, so I just kept on running beside the house. And I turned around, I don’t know why I turned around, to see if he was still, if he was still behind me, and then came pow, pow, two more times. Q. How many times were you hit? A. Three times.

Q. Where were you hit? ⁶ A. In my leg, my—well, the first shot was my arm, my leg and my abdomen. (Emphasis supplied). Green insisted that he did not know the appellant before that morning, but nonetheless said that he had “heard of him.” During the encounter, the two men were within about five feet of each other. Green ran to the side of the house as two final shots were fired.

A. I didn’t go in the, I didn’t go in the back, in the back door, I ran to the side of the house. That’s where the last two shots were fired into my body, and he ran off. Q. Okay. So, just for clarification, you run this way— A. Right there, I made it right there.

Q. And you’re shot again here? A. Yes. I looked back and he was right behind me, he was on my heels. (Emphasis supplied).

After the appellant’s gun was empty, Green sought some explanation for the shooting, but the appellant fled the scene without answering. Q. Did the Defendant ever ask you for anything at all? A. No. I asked him. On the side of the house, what, what, you know, what is it, a robbery ?

What is this about, money? What is this about? Q. Did he say anything? A. No. Q. At what point did that occur?

When did you ask him that? A. On the side of the house. Q. Okay. A. Yeah.

Q. As you were running? A. Yeah. No, not while I was running, after he fired the last shot, I said, boy, what you keep shooting me for? He kept clicking the gun, you know, it wasn’t no more bullets ⁷ left in it, I said what are you still trying to shoot me for, what is this about, money?

I’m asking, right? Q. Did he answer? A. No, he just took off after. (Emphasis supplied).

Amanda drove Green to the hospital. Green next remembers waking up in the Shock Trauma Unit of the University of Maryland Hospital in Baltimore, where he remained for five days. He had had a conviction in federal court for possession of crack cocaine and at the time of the shooting was apparently working in cooperation with federal drug authorities. The entire confrontation between the appellant and Travis Green was witnessed by Elmer Duffy.

On December 13, 2011, three days after the shooting, Elmer Duffy gave a statement about what he had observed. That statement was recorded and transcribed and subsequently introduced into evidence. On the morning of December 10, 2011, Duffy had arrived to do some house painting at the vacant house immediately adjacent to Amanda Faulcon’s home at 729 Dennis Street. Duffy knew the appellant from their frequent playing of basketball together some years earlier.

Duffy also knew the appellant’s mother and his sisters. When Duffy first saw the appellant standing in the driveway, the two greeted each other. So I spoke to him, “Hey, Mark." He said, “Hey, Elmer." And I went on in the house. When I went in the house, I let the blinds up so I could see what he be doing[.] (Emphasis supplied).

Duffy then described the shooting scene itself. A He [Travis Green] stood there at that back door and looked around. Then when he came off that back stoop, he walked around the back side of his vehicle, opened this door up— Q Okay. A —and when he got in, I look and there was Mark running. ⁸ Q Okay.

So— A Running towards him. Q The guy that come out of the house went to the driver’s side of the— A He went around the back of his vehicle, then got into the driver’s side. Q Open the driver—okay. A And once he got in the driver’s side, I looked and Mark was running towards that vehicle coming up from the back side.

Q Okay. From where he was standing? A From where he was standing. So that means he came up in the back of the vehicle.

Q Okay. A And he ran around on this side, opened that door and just pow, pow, pow, pow, pow, and I was, like—I’m standing to the window, and I’m, like, damn. I figured the guy was dead, so help me God. Some kind of why he jumped out on this side— Q Okay.

A —on the ground— Q Come out the passenger’s side on the— A Come out the passenger’s side on the—and jumped on the ground. Mark came around the front side of the vehicle and like he was trying to shoot him again. And what made me think that that guy was shooting back at Mark was because Mark was ducking. Do you understand what I’m saying?

Q Right. A When he ran around this side to try to shoot the guy, he ducked and ran back to this side. Then the guy got up off the ground, and then I don’t know if he shot at Mark or Mark shot him again, then he bust in the back door. Then when he bust in the back door, like, Mark shot a couple ⁹ more times.

And then when Mark come running back this a way [.] (Emphasis supplied). Elmer Duffy did not testify at the appellant’s trial on October 10, 2012, for the obvious reason that he was murdered on February 20, 2012. The introduction into evidence of his recorded statement to the police is the most noteworthy of the contentions before us. Ironically, the testimony of the appellant himself helped to fill in what otherwise might have been arguable gaps in the State’s case.

The appellant placed himself right at the scene of the crime at approximately 8:30 a.m. on December 10, 2011. The appellant testified that he went to the area, specifically to a Richard Blake’s house, because he “had some furniture that needed to be taken to Delmar Recycling.” Richard Blake’s house was next door to the house where Elmer Duffy was to do some painting. Elmer Duffy arrived in the area about 15 minutes after the appellant got there. The two men, who knew each other, conversed for a time.

At that point, two of the appellant’s “associates” came up and inquired of the appellant if he knew where they could get some drugs. “Associates” means buyers of narcotics and “anything” means narcotic drugs. A Well, like I said, Mr. Duffy pulled up, and then I had two friends that come to me, associates that came to me and asked me did I know anybody that had anything. I said no, I don’t know nobody got anything because— Q What does that mean, had anything? A Talking about drugs.

(Emphasis supplied). In his further testimony, the appellant elaborated: THE WITNESS: Like I said I had two associates who come up, approached me, asked me did I know anybody who had anything as far as— BY [DEFENSE COUNSEL]: Q Mr. Smiley, what does that mean? ¹⁰ A Drugs. Q And what do you mean by associates? A Well, two guys that I knew.

Not friends but ... Q Not friends? A People that I associate with. Q Okay.

And they came up, and what did you do after they came up? A Well, like I said, they asked me did I know anybody that had anything. (Emphasis supplied). From that point on, the appellant took up the cause of getting his associates some drugs, as he took the associates’ purchase money.

THE WITNESS: Okay. Well, what I did next was, I took the money that he had given me, I took the money, and I was in the process, like I say he asked me did I know anybody had anything, I said no, I don’t know anybody have anything. He said, well, he knows Travis [.] (Emphasis supplied). Even if the appellant and Travis Green were not close acquaintances, the appellant knew that Travis Green sold drugs.

The appellant waved to Green, called him by name, and ran in his direction in an effort to purchase drugs. I ended up going towards Mr. Green. I had about, about, the house was about 40 to 50 yards away, and I went to Mr. Green. And I didn’t know him, I was just going to him, and as I was going to him I waved my hand in the air like this, I was asking him, I said Travis, Pm trying to get something, I’m trying to get something.

And he looked at me like I’m crazy, and I’m looking at him like he’s crazy, because we didn’t know each other. We didn’t know each other. And I said I’m going to, Pm running to him trying to buy something, trying to get some drugs, and in the process of me running to him I get about a good, like I said, a good about 40, 50 yards away from him, and when I get about a good 25 to 30 yards away, and he said— ¹¹ As I was getting closer to Travis, about 15 yards away, and he’s standing, he’s standing on the back porch, he’s standing on the back porch, and as though he’s talking to somebody in the driveway, and like I said, as I’m running towards him saying, I’m trying to catch him before he leaves, and I’m trying to, trying to say I want to get something from him. And in the process, like I said, somebody, he act as though he’s talking to somebody in the driveway.

And as I get to about, a good ten yards away from him, I see this person in all bla,ck, with a black ski mask on, he jumps in between the house, I hear two shots. When I heard two shots, I immediately hit the ground. I stayed on the ground about a good five to eight seconds. I look up, I don’t see Travis on the back porch anymore.

(Emphasis supplied). But for the sudden appearance of the mysterious masked gunman, the appellant essentially corroborated the versions of events given by both Travis Green and Elmer Duffy. The appellant’s placing of himself at the scene of the crime and his acknowledgment that, to some extent at least, he knew Green certainly dispel any lingering doubt about the reliability of Green’s photographic identification of the appellant. The fact that the appellant knew Green, moreover, gives rise to a permitted inference that Green knew the appellant.

The Contentions The appellant raises three contentions. 1. He contends that at a pretrial hearing on September 27, 2012, Judge Leah J. Seaton erroneously ruled that the out-of-court declaration of Elmer Duffy, who was unavailable as a witness because he had been murdered, was admissible via an exception to the rule against hearsay, Maryland Rule 5-804(b)(5)(B) and Courts and Judicial Proceedings Article, § 10-901; 2. He contends that at a pretrial hearing of June 8, 2012, Judge W. Newton Jackson, III, erroneously failed to ¹² suppress the victim, Travis Green’s, extrajudicial identification of him from a photographic array; and 3. He contends that at trial Judge Simpson erroneously excluded testimony by his proposed expert witness on the frailties of eyewitness memory and identification.

The Doctrine Of Forfeiture By Wrongdoing Happily, all parties are in full agreement on one thing. Elmer Duffy was unavailable as a witness on October 10, 2012 because Elmer Duffy had been murdered on February 20, 2012. His out-of-court declaration to the police of December 13, 2011 was quintessentially hearsay when proffered in evidence in lieu of his live appearance. The State nonetheless sought to qualify it as an exception to the Rule Against Hearsay pursuant to Maryland Rule 5—804(b)(5)(B), which provides: (b) Hearsay exceptions.

The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (5) Witness unavailable because of party’s wrongdoing. (B) Criminal causes. In criminal causes in which a witness is unavailable because of a party’s wrongdoing, admission of the witness’s statement under this exception is governed by Code, Courts Article, § 10-901. Although Rule 5-804(b)(5)(B), effective as of January 1, 2006, now masquerades as a typical hearsay exception, it is, in its essential nature, something quite different.

Like many hearsay exceptions, it is, of course, dependent on necessity, to wit, upon the unavailability of the live witness. Unlike most other exceptions, however, its complementary raison d’Ure is not the reliability of the assertion. Its animating rationale, rather, is a policy position that the opponent of a hearsay declaration will not be permitted to profit from his own wrongdoing in procuring the absence of the declarant as a witness. ¹³ Although the provenance of the principle goes deep into Anglo-American common law, its current prominence is as a collateral consequence of the Supreme Court’s watershed decision of Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004). The Supreme Court’s decision was that an out-of-court declaration that is “testimonial” in nature cannot escape the rigors of the Confrontation Clause even if it otherwise qualifies as an exception to the Rule Against Hearsay.

With Crawford , therefore, much of the typical prosecutorial arsenal was rendered useless. As alternative solace, the prosecution turned to the venerable, but theretofore largely neglected, principle of forfeiture by misbehavior. If the unavailability of a witness is a result of a misdeed by a criminal defendant, that defendant is deemed to have forfeited any right to use the Confrontation Clause to bar even a testimonial out-of-court declaration by the missing witness. 1 The switch in prosecutorial tactics was immediate and nationwide. 2 In Davis v. Washington, 547 U.S. 813, 833 , 126 S.Ct. 2266 , 165 L.Ed.2d 224 (2006), the Supreme Court reaffirmed and elaborated on the doctrine of forfeiture by wrongdoing: [W]hen defendants seek to undermine the judicial process by procuring or coercing silence from witnesses and vic ¹⁴ tims, the Sixth Amendment does not require courts to acquiesce. While defendants have no duty to assist the State in proving their guilt, they do have the duty to refrain from acting in ways that destroy the integrity of the criminal-trial system.

We reiterate what we said in Crawford : that “the rule of forfeiture by wrongdoing ... extinguishes confrontation claims on essentially equitable grounds.” That is, one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation. (Emphasis supplied). The Supreme Court itself had applied the doctrine of forfeiture by wrongdoing as far back as Reynolds v. United States, 98 U.S. 145,158 , 8 Otto 145 , 25 L.Ed. 244 (1878): The Constitution gives the accused the right to a trial at which he should be confronted with the witnesses against him; but if a witness is absent by his own wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away. The Constitution does not guarantee an accused person against the legitimate consequences of his own wrongful acts.

It grants him the privilege of being confronted with the witnesses against him; but if he voluntarily keeps the witnesses away, he cannot insist on his privilege. If, therefore, when absent by his procurement, their evidence is supplied in some lawful way, he is in no condition to assert that his constitutional rights have been violated. (Emphasis supplied). The doctrine is, indeed, traced as far back as Lord Morley’s Case, 6 How.

St. Tr. 769, before the House of Lords in 1666. See also 6A Lynn McLain, Maryland Evidence, § 804(5), “When Declarant’s Unavailability Is Obtained By Wrongdoing of Opponent Of Hearsay” (3d ed. 2013); Joseph F. Murphy, Jr., Maryland Evidence Handbook, § 805(A)(1), “Forfeiture by Wrongdoing” (3d ed. 1999, 2008 Cum.Supp.). In the wake of Crawford v. Washington, however, this theretofore modest equitable doctrine took on a far greater significance. ¹⁵ Giles v. California, 554 U.S. 353 , 128 S.Ct. 2678 , 171 L.Ed.2d 488 (2008), completed the trilogy of Supreme Court opinions dealing with forfeiture by wrongdoing. In fine-tuning the doctrine, Giles stands for the unremarkable proposition that it is not enough that the wrongdoing of the defendant shall actually have caused the unavailability of the witness.

It is further required that the wrongdoing have been perpetrated for the purpose of causing the witness to be unavailable. It is a specific-intent doctrine. In Giles , the wrongdoing had been Giles’s murder of his ex-girlfriend, who thereby became the unavailable witness. Giles’s testimony, however, had been that, in the course of a hot-tempered struggle, he had killed the ex-girlfriend in self-defense.

The California court required no showing of an intent to make the victim unavailable as a witness. It was for ignoring that critical element that the Supreme Court reversed. The state courts in this case did not consider the intent of the defendant because they found that irrelevant to application of the forfeiture doctrine. This view of the law was error, but the court is free to consider evidence of the defendant’s intent on remand. 554 U.S. at 377 , 128 S.Ct. 2678 (emphasis supplied).

Two excellent analyses of the prosecutorial response to Crawford’s new interpretation of the Confrontational Clause are Warnken, 37 U. Balt. L.Rev. 203, and Paul W. Grimm and Jerome E. Deise, Jr., “Hearsay, Confrontation, and Forfeiture By Wrongdoing: Crawford v. Washington, A Reassessment of the Confrontation Clause,” 35 U. Balt. L.F. 5 (2004) (hereinafter “Grimm”). In the case now before us, by dramatic contrast, this intent or motivation element poses no remote problem.

The two intercepted telephone calls from the appellant sending the word to his nephew to eliminate Duffy emphatically proclaim the appellant’s purpose and intent of “mak[ing] sure that boy don’t come to court.” Maryland’s quick response to Crawford v. Washington and to the new battlefield conditions manifested itself within the ¹⁶ year in Chapter 446 of the Acts of 2005, effective October 1, 2005, now codified as Maryland Code, Courts and Judicial Proceedings Article, § 10-901: § 10-901. Admission of statement in a criminal case. (a) In general.—During the trial of a criminal case in which the defendant is charged with a felonious violation of Title 5 of the Criminal Law Article or with the commission of a crime of violence as defined in § 14-101 of the Criminal Law Article, a statement as defined in Maryland Rule 5-801(a) is not excluded by the hearsay rule if the statement is offered against a party that has engaged in, directed, or conspired to commit wrongdoing that was intended to and did procure the unavailability of the declarant of the statement, as defined in Maryland Rule 5-804. (b) Hearing.—Subject to subsection (c) of this section, before admitting a statement under this section, the court shall hold a hearing outside the presence of the jury at which: (1) The Maryland Rules of Evidence are strictly applied; and (2) The court finds by clear and convincing evidence that the party against whom the statement is offered engaged in, directed, or conspired to commit the wrongdoing that procured the unavailability of the declarant.

(c) Exceptions.—A statement may not be admitted under this section unless: (1) The statement was: (i) Given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition; (Ü) Reduced to writing and signed by the declarant; or (iii) Recorded in substantially verbatim fashion by stenographic or electronic means contemporaneously with the making of the statement; and ¹⁷ (2) As soon as is practicable after the proponent of the statement learns that the declarant will be unavailable, the proponent notifies the adverse party of: (i) The intention to offer the statement; (ii) The particulars of the statement; and (iii) The identity of the witness through whom the statement will be offered. (Emphasis supplied). Colkley v. State The first and only Maryland appellate case on the forfeiture by wrongdoing doctrine was Colkley v. State, 204 Md.App. 593 , 42 A.3d 646 (2012), rev’d on other grounds, 432 Md. 650 , 69 A.3d 1104 (2013). Colkley actually dealt with two separate and completely unrelated invocations of the forfeiture doctrine, an unsuccessful invocation by the defense and a successful invocation by the State.

At an earlier trial, a witness had given some marginally helpful testimony for the defendant. That witness, however, was unavailable for the defendant’s retrial because of an intervening conviction for perjury. The defendant blamed the State for having brought about that unavailability by that conviction. The defendant’s invocation of the forfeiture doctrine, however, was twice-eurst.

In the first place, the State’s legitimate and successful perjury prosecution was not a wrongdoing. In the second place, there was no remote showing that the perjury prosecution had been undertaken for the purpose of making the witness unavailable. That fatal lack of intent was a straightforward application of Giles v. California. The second invocation of the forfeiture doctrine was by the State and it was successful.

It bore a striking resemblance, moreover, to the case now before us. A 17-year-old co-defendant gave a taped statement to the police shortly after his arrest, implicating the defendant Colkley. Colkley learned of that fact and subsequently, from jail, made telephone contact with two separate confederates. One of them testified for the State and described Colkley’s conversation with him. ¹⁸ [Colkley ] at that point was telling me that the case ... the State had against [him] was weak.

The only thing, the only place where they had any type of strength that came from their case was from the kid [the 17-year-old]. He supposed to make a tape for the State. He told the State law enforcement about the whole incident and it was recorded. ... [H]e was telling me that they had to get rid of [the 17-year-old] because without [the 17-year-old] they won’t have no case. 204 Md.App. at 635 , 42 A.3d 646 (emphasis supplied). Several hours later, the 17-year-old was shot and killed.

One of Colkley’s confederates, who paid for several contract killings in the course of the larger case, was introduced to and paid a theretofore unknown “hit man” for the killing of the 17-year-old potential witness. The trial judge found the following: [T]he State has established by clear and convincing evidence that Mr. Colkley engaged in, directed or conspired to make, to commit wrongdoing that was intended to and in fact did cause [the 17-year-old] to be unavailable. Id. at 637-38 , 42 A.3d 646 . This Court affirmed that finding and ruling. [The] conspiracy unquestionably included the ... necessary coverup of preventing detection by police and use by the prosecution, as particularly evidenced by Colkley’s telephone conversation with Horsey on July 9, 2008, that “they had to get rid of [the 17-year-old] because without [the 17-year-old], they won’t have no case.” Id. at 638 , 42 A.3d 646 (emphasis supplied).

The Appellant’s Forfeiture By Wrongdoing As Professor Warnken pointed out, 37 U. Balt. L.Rev. at 204, the Maryland procedure for applying the forfeiture by wrongdoing doctrine is the most defense-oriented in the nation: Maryland is the only jurisdiction that takes a defense-oriented, proconfrontation position on all three major com ¹⁹ ponents of a “wrongdoing” determination, requiring: (1) a hearing, (2) strict rules of evidence, and (3) clear and convincing evidence of wrongdoing. (Emphasis supplied). Section 10-901, moreover, limits the availability of forfeiture by wrongdoing to a limited category of crimes—to narcotics offenses under Title 5 of the Criminal Law Article and to crimes of violence pursuant to Section 14-101 of the Criminal Law Article.

This appellant received the full benefit of every one of Maryland’s heightened standards. There was no question about Elmer Duffy’s unavailability on October 10, 2012. He had been murdered on February 20, 2012. In compliance with Courts and Judicial Proceedings Article, Section 10-901 (a), the appellant was on trial for a crime of violence under Criminal Law Article, Section 14-101(a)(7) “murder,” and (a)(15) “an attempt to commit any of the crimes described in items (1) through (14) of this subsection.” Before finding a forfeiture by wrongdoing, Maryland, unlike the majority of American jurisdictions, requires a hearing.

The appellant received a full two-day hearing before Judge Leah J. Seaton on September 27 and October 1, 2012. Maryland, unlike most American jurisdictions, requires that the hearing judge be persuaded of the wrongdoing by clear and convincing evidence. In rendering her decision on October 1, 2012, Judge Seaton expressly made her finding according to that heightened standard of persuasion. Under 10-901, the Court finds by clear and convincing evidence that the defendant engaged in, directed or conspired to commit the wrongdoing that procured the unavailability of Mr. Duffy.

(Emphasis supplied). Section 10-901(b)(l) further directs that the Maryland Rules of Evidence be strictly applied. We have scanned every line of the two-day hearing before Judge Sea-ton and find not a murmur of objection or protest to any evidentiary ruling or hearing procedure. ²⁰ A Burden of Persuasion Is Not a Burden of Production Maryland’s enhanced level of persuasion is worthy of some comment, for the appellant apparently reads something into it that is not there. In brief and argument, he solemnly intones the phrase “by clear and convincing evidence,” as if it were a mantra having a critical bearing on the issue before us.

It is not. Burdens of persuasion are simply guidelines to factfinders as to the level of certainty they should feel before arriving at a conclusion on a particular issue. 3 As a matter of law, a jury should be instructed as to the proper burden of persuasion. As a matter of law, the factfinding judge must arrive at certain conclusions using the proper burden of persuasion. Beyond that, however, the burden of persuasion deals only with matters of fact and its application by the factfinder to a particular set of facts is not a matter of law.

When we at the appellate level are assessing legal sufficiency with regard to the burden of production, we assume maximum credibility and maximum weight, which is something the hearing judge does not do. He must be persuaded, whereas we need not be. Once the burden of production has been satisfied, that quantum of evidence that could persuade one factfinder by a bare preponderance of the evidence could persuade a second factfinder clearly and convincingly and could persuade yet a third factfinder beyond a reasonable doubt. The burden of production, which is our only concern on appeal, does not rise or fall with the burden of persuasion. ²¹ Nor does the imposition of a heightened burden of persuasion imply the imposition of a heightened burden of production.

This is not to say that the Maryland General Assembly’s decision to heighten the burden of persuasion is not significant. It is very significant. It makes the proving of forfeiture by wrongdoing more difficult in Maryland than it is in most states and in the federal courts, which are content to rely on the bare preponderance level of persuasion. All we are saying is that Maryland’s heightening of the burden of persuasion has its impact at the trial level, where the factfinding judge must apply that heightened standard to himself, but not at the appellate level, where persuasion is not a concern.

The place for the appellant’s rhetorical intoning of the mantra, therefore, was before the hearing judge, not before us. It is a very important factor in its proper context, but the defense must not take it out of that context and attempt to turn it into a measure of legal sufficiency at the appellate level. In any event, Judge Seaton correctly applied Maryland’s enhanced level of persuasion to herself and her ultimate findings and ruling were in strict compliance with that enhanced standard. A Critical Mission For a Nephew Elmer Duffy gave his recorded statement to the police on December 13, 2011.

The word apparently spread quickly, for on December 14, the appellant, albeit in jail, was aware that Duffy was telling people that he had seen the appellant as the person involved in the shooting of Travis Green. The first of two intercepted telephone calls that the appellant made from the Wicomico County Detention Center was to his mother at 9:46 a.m. Through his mother, the appellant was passing on the unmistakable message to his nephew, Heathcliff “Keith” Parker, to get Elmer Duffy “out of the picture.” MR. SMILEY: ...

But let—let Heathcliff—Heathcliff [Smiley’s nephew] and Kev and them know that the hoy who lives across the street from, Kevin, Elmer Duffy, was a witness. He—he told people he seen me standing outside and he seen me running with the gun and all that stuff. ²² Elmer ... Elmer Duffy, the boy that lives across the street from Kevin, Mom. The boy that lives across the street from Kev.

You see that boy Elmer, get him out of the picture. You know, I don’t want that stuff. I ain’t trying to go out like that, Mom. But yeah, Mom.

Tell Kevin, like I said, I’m going to put him on the visiting list. MOTHER: They’ll be over. Put them down. MR.

SMILEY: I’m going to put them on. MR. SMILEY: Just tell Kim I said—just make sure you tell Kim, Mom, that I said make sure they take care of that. MOTHER: All right.

MR. SMILEY: You know what I’m talking about? MR. SMILEY: Make sure he take care of everything, Mom, what I’m talking about.

You know what I’m talking about— MOTHER: All right. (Emphasis supplied). The second telephone call from the appellant that was intercepted that same morning was to an unidentified female. The same urgent message was to tell Heathcliff not to let Elmer Duffy “come