Smith v. State

RAYMOND G. THIEME, JR. (Retired Specially Assigned), J. Appellant, Gary James Smith, was indicted in the Circuit Court for Montgomery County, Maryland, and charged with the murder of Michael McQueen and use of a handgun in the ⁵⁰⁴ commission of a felony. Following a twelve-day jury trial, appellant was convicted of second-degree depraved heart murder and use of a handgun in the commission of a felony. Appellant was sentenced to SO years for second-degree depraved heart murder, to be followed by a consecutive sentence of 20 years for use of a handgun, with 15 years of that latter sentence suspended, followed by five years supervised probation upon release.

Appellant timely appealed and presents the following seven questions for our consideration: 1. Where suicide versus homicide was at issue, did the trial court err in refusing to admit evidence of the decedent’s state of mind? 2. Did the trial court err in giving the jury a voluntary intoxication instruction, an affirmative defense, that was not generated by the evidence and was not asserted by the defense at trial? 3. Did the trial court err in admitting the hearsay statement of Michael McQueen that “Gary is not right in the head” as relevant for purposes of establishing motive? 4.

Did the trial court err in refusing to allow the defense to question the State’s expert about prior cases for bias and prior inconsistent statements? 5. Did the trial court err in permitting the improper rebuttal expert testimony of Dr. Jonathan Arden? 6. Did the trial court err in not granting a mistrial when the prosecution improperly commented on sentencing during rebuttal argument to the jury? 7. Did the trial court abuse its discretion by repeatedly questioning State and defense witnesses in a manner which appeared to support the State’s theory of the case, thereby depriving Appellant of his right to a fair and impartial trial?

For the following reasons, we shall affirm. BACKGBOUND Michael McQueen died of a contact gunshot wound to the head in the early morning hours of September 26, 2006. His roommate, Gary Smith, the appellant, was the only one present at the time of the shooting. Appellant and McQueen had ⁵⁰⁵ been roommates for about three weeks prior to the shooting.

Both had served as U.S. Army Rangers and had been deployed several times together in Afghanistan. On the night of September 25, 2006, at around 5:30 p.m. or 6:00 p.m., appellant and McQueen smoked some marijuana in their apartment, had dinner, and drank a couple beers. After that, they went to the VFW post in Gaithersburg, where, over the course of two or three hours, they drank mixed drinks and played pool. After leaving the YFW at 11:00 p.m., McQueen and appellant went to the Village Café, where they stayed between a half hour and an hour, and left without finishing their beers.

When he was interviewed by police during the early morning hours of September 26, 2006, appellant gave police at least three versions of what happened next. According to the testimony of Detective James Drewry, of the Montgomery County Department of Police, in the first version, appellant dropped McQueen off at their apartment, then traveled to his mother’s house to pick up clean socks. Appellant returned to the apartment at around 12:30 a.m., found the door unlocked, and called out, “Did you» pack that bong again asshole.” Appellant found McQueen “sitting half-way on his chair. I tried to take him back up and put him back up on the chair.

Because I thought he was drunk at first. Just kind of slumped. But then I saw the blood on the floor, and then I thought maybe he knocked over his beer, and then I knew it was blood. I ran back downstairs and grabbed my phone from the car.

Called 9-1-1.” Appellant ran back upstairs, touched McQueen’s hand and neck to see if he had a pulse, but felt none. Appellant thought it was possible that the blood on his person got there when he checked on McQueen. While appellant admitted that he owned a .45 caliber pistol, a .9 mm rifle, and an AK47, he indicated that these weapons were stored at his mother’s house. McQueen used to own a .9 mm pistol, but that pistol had been sold.

Thus, according to appellant’s first version, while there may have been loose ammunition in his car on the night in question, there were no guns either in the house or in his car. ⁵⁰⁶ Also in this first version of events, appellant gave police information concerning other possible suspects. Appellant informed police that McQueen had a history of arguing with some “Hispanic Mexican” guys who lived in the community. Appellant also indicated that they normally purchased their marijuana from a person named “P.J.”, but appellant did not believe P.J. was involved. The marijuana they smoked earlier that night was from a different dealer, an African-American male that drove a beige Jaguar.

Appellant also told police that McQueen was in Florida for two weeks prior to the shooting, and that “he must have done something really bad to have someone drive all the way up there and want to kill him. And Mike wouldn’t do anything like that.” Later during his interview with Detective Drewry, appellant told a second version of events. In this version, appellant informed police that there was, in fact, a gun in the apartment when he discovered McQueen. Appellant maintained that he dropped McQueen off while he went to his mother’s house to pick up his clean laundry.

When appellant came home, “Mike was dead. The gun was in his hand. It was a .38. I didn’t know if he was playing around with it or what.

I got so scared when I found him lying there dead that I took the gun and I threw it away. And I called the cops and I called an ambulance.” The gun was appellant’s own Smith & Wesson .38 special that he kept under the kitchen counter, a location known both to appellant and McQueen. Believing that his fingerprints were on the weapon, appellant took the gun and drove to nearby Lake Needwood. He removed the bullets out of the gun, and then threw the gun and the bullets into the lake.

Appellant maintained that McQueen’s blood got on him when he checked on McQueen and when he put the gun in his pocket. After he disposed of the gun, appellant drove back to the apartment and then called 9-1-1. 1 ⁵⁰⁷ When asked why he lied in his first version, appellant stated: “I just came home and my friend’s fucking dead and he’s got a big hole in his head and it’s like, how hard would it be for me to, you know, shoot you and put the gun in your hand and then, you know, it’s, I was just so scared.” Appellant stated it was his “responsibility and it was my fault. I shouldn’t have left it there.” Although appellant initially denied that McQueen committed suicide, he later told police that McQueen “killed himself.” Finally, in this second version, appellant swore that he was not present when the shooting occurred. Appellant gave a version of events toward the end of his September 26, 2006 interview with Detective Drewry.

In this final version, appellant finally admitted he was inside the apartment when the shooting occurred. Appellant stated, “When I went to my mother’s house I put the .38 inside the laundry basket, and when I took it into the house I just put it in my pocket and took it upstairs. I put it on the floor.,[ 2 ] I was like, you see this one, right, Mike? He goes “Yeah.” I said “Okay.

Watch out. It’s loaded.” I went into the back bathroom. I was going number two. I came out and as I was walking out in the hallway I was about inside the room and I heard the bang.” Appellant “saw the blood coming out of [the victim’s] head,” and stated: I absolutely went ballistic.

I didn’t know what to do. I didn’t know to call 9-1-1. I didn’t know whether to grab him and pick him up. I didn’t know whether to throw him in [the] car.

I didn’t know what to do. And you train for this [in] combat, when your buddy gets shot in combat, you know what to do. Appellant then decided to dispose of the gun. After returning to the apartment, appellant maintained that he still did not know what to do.

Appellant contemplated retrieving ⁵⁰⁸ the gun, or putting another gun in McQueen’s hands, but realized the ballistics evidence “won’t match up.” At that point, appellant finally decided to call 9-1-1, stating: “I knew the longer I waited the more suspicious it would look, so I called 9-1-1.” In addition to these different accounts surrounding the shooting, at some point during his interview with police, appellant told Detective Drewry that he shot a twelve-year-old boy wearing grenades on a vest, as well as the boy’s mother, while he was deployed in Iraq. Appellant also told the detective: I tried to tell my best friend, I said, I told him I shot a 12-year-old boy and I saw the look on his face when he, that look right there, like if you shot a 12-year-old boy, you’re a monster. You know, I told him. He gave me that look and I saw it.

He lost so much respect for me when I told him that. And, people don’t understand that. People don’t understand, even if it was a grown man, that, that catastrophic, the things that go on up here every single day. In addition, after returning from overseas, appellant sought treatment at Walter Reed Hospital for depression, but was turned away because he was not active Army at the time.

Appellant stated: “They told me I had to leave, you can’t talk. You try to talk to people and no one ever understands.” Appellant swore that McQueen “killed himself.” Appellant surmised that “[m]aybe [McQueen] saw something he didn’t like overseas. Maybe his girl broke his heart. Some things are harder to explain than others.

Guys like me and Mike, we’re supposed to be these big tough killers, we can’t let a woman hurt us. You know that.” When asked whether McQueen appeared as if there was something “going on that he just couldn’t deal with,” appellant replied, “[a] little bit. But, I didn’t, I don’t know. I never saw him, I don’t know what would make him do it.” After completing his statement, appellant assisted the police in recovering the gun from Lake Needwood. ⁵⁰⁹ Officers from the Gaithersburg Police Department and the Montgomery County Police responded to the scene at around 1:00 a.m. following the 9-1-1 dispatch.

Appellant was outside the apartment building on his knees crying hysterically, vomiting, and repeatedly yelling, “He’s dead. He’s dead.” Appellant had a considerable amount of blood on his hands, face, shirt, and shoes. The parties would later stipulate that appellant’s undershirt, tennis shoes, jeans, and t-shirt all tested positive for the presence of blood DNA from McQueen, and negative for blood DNA from appellant. DNA swabbed from appellant’s left palm and chin contained a combination of McQueen’s blood DNA, and appellant’s non-blood DNA.

The swab from appellant’s cheek and neck tested positive for McQueen’s DNA. After obtaining a search warrant at around 2:22 a.m., forensics specialist Kimberly Clements processed the crime scene and took photographs of the blood spatter on the carpet and surrounding area. A portion of the carpet containing blood spatter was cut out and recovered. Blood was found on a door handle, and bloody footprints were found in the hallway near the rear bedroom.

There was drug paraphernalia in McQueen’s lap, next to his left hand. McQueen’s right arm was dangling down with his hand on the floor next to a beer bottle, a ceramic pipe, and a bong. The latter two items tested positive for marijuana and marijuana residue. There was also a remote control under McQueen’s right hand and one of two televisions in the room was turned on.

Clements also recovered a gun locking cable from the living room area. Clements testified that the “cable is intended to go through the gun chamber and lock so the gun cannot be fired loaded or fired accidentally.” A second gun locking cable, as well as a bag containing ammunition, were recovered from a rear bedroom. Another forensic specialist, Grant Lee, processed appellant’s car and recovered “three rifle magazines, a pistol magazine, 12 gauge shotgun round, two live 7.62 ⁵¹⁰ rounds, a box of 22 ammunition and one live .38 round” from the driver’s side front door pocket. Gunshot residue (“GSR”) samples were taken from both appellant’s and McQueen’s hands.

The State’s GSR expert testified that the hands of both appellant and McQueen tested positive and there were more particles on McQueen’s hands than on appellant’s. After explaining that “particles would remain on the hands until the time of collection unless it were handled or moved around,” the expert opined that, given the approximately 40 to 45 minutes between the time of the incident and the collection of the residue from appellant, “there was ample opportunity for the cause of particle loss.” The GSR expert could not conclude who the shooter was based on his analysis. A suspected projectile or portion of a bullet, as well as copper fragments from a bullet jacket, were collected during McQueen’s autopsy. A firearms expert examined these items, as well as the .38 revolver recovered from Lake Needwood.

While the bullet fragments recovered from McQueen were consistent with having been fired from a similar firearm, the expert could not conclude that the fragments actually were fired from the .38 revolver recovered in this case. Dr. Carol Allan, the State’s forensic pathologist who conducted McQueen’s autopsy, testified that McQueen sustained a “very severe” contact gunshot wound to the right side of the head. The path of the wound was right to left, and very slightly front to back. Dr. Allan also testified that McQueen had a blood alcohol level of somewhere between .13 and .20.

As noted, the cause of death in this case was a gunshot wound to the head. Dr. Allan then addressed the manner of death, noting that Maryland recognizes five manners of death, including: natural; accident; suicide or self-inflicted; homicide, and undetermined. Dr. Allan concluded that, to a reasonable degree of medical certainty, the manner of death in this case was homicide. Dr. Allan based her conclusion on the circumstances surrounding McQueen’s death, including that there was no blow-back, soot or blood spatter on McQueen’s right hand or ⁵¹¹ forearm; the gunshot residue on McQueen’s hands did not display a specific pattern indicating that he was holding a gun; there was no gun found at the scene of the shooting; and, there was no evidence on the carpet below McQueen’s right hand that a gun had been dropped.

In fact, Dr. Allan noted that “the thing that was in the ideal positioning for being in the right hand was, actually, a TV remote.” Dr. Allan also based her conclusion on the fact that the reporting individual, appellant, had a number of versions of how events unfolded; these versions were not adequately explained by the blood spatter evidence; there was no indication that McQueen was known to act impulsively or in a risk-taking manner while either intoxicated or sober; there was no evidence that McQueen was suicidal or otherwise depressed; and, there was no indication that McQueen could not obtain a gun earlier, if he wanted to commit suicide. Finally, Dr. Allan agreed that although she reviewed reports from other experts involved in this case, those reports did not lead her to change her conclusion that the manner of death was homicide. Several other experts testified at trial. Dr. William Vos-burgh, the State’s expert in the field of blood stain pattern analysis and interpretation, identified two areas on the carpeting that were of particular importance in this case.

One was a “v” shaped void in the blood stain pattern. Vosburgh was of the opinion that this void was caused by an “intervening object being [there] for some period of time during maximum blood pressure.” Vosburgh believed that the intervening object was appellant’s right shoe. The other area of interest was another void caused by “a hand that [was] in the way at that moment getting blood cast upon it, and a spray of blood going between the [fingers].” Dr. Vosburgh also was aware that appellant claimed that he touched the wound to attempt to stop the bleeding, but there was no evidence of any imprint or indication that the wound was touched or moved after the shot was fired. On cross-examination, Dr. Vosburgh agreed that his preliminary assessment was that the contact gunshot wound to the victim’s head was not self-inflicted. ⁵¹² In contrast to Dr. Vosburgh’s opinions, Herbert MacDonnell and Barton Epstein testified as defense experts in blood stain pattern analysis and interpretation.

Both experts were of the opinion that the “v” shaped void pattern on the carpet could not have been made by appellant’s sneaker because the void was “v” shaped, while the sneaker was rounded and would have left a void in a similar shape. Further, Professor MacDonnell testified that there was not enough blood on the sneaker to account for the amount of blood visible on the stain in the carpet. It was his opinion that the blood on appellant’s sneaker was caused when the sneaker “came into contact with something that was bloody.” Mr. Epstein agreed that, at some point, appellant’s pants and shoes “were underneath the dripping blood of McQueen,” but it was unclear when or where that occurred. However, appellant’s pants and shoes only needed to be under the source of blood for “a very short time, meaning a second or less,” to have resulted in the stains.

Both defense experts examined the rug and found a left handprint, which they concluded was not a void caused by a hand being on the carpet at the time of the initial bleeding, but rather, was made by blood being transferred from a bloody palm onto the rug. Both experts also disagreed with Dr. Vosburgh’s opinion that this stain was caused by a spray or mist of blood going between the fingers because, as Professor MacDonnell testified, there was “just too much blood for a mist or a spattered blood from impact to do that.” 3 Professor MacDonnell was also of the opinion that the pattern of the blood stains and the presence of tissue on McQueen’s right arm indicated that McQueen’s arm was upright, above shoulder height at the moment of impact. 4 Mac- ⁵¹³ Donnell explained that the initial stain on the arm was “from right to left and then eventually running down by gravity.” Professor MacDonnell also concluded that McQueen’s head was upright at the time the wound was sustained. Therefore, MacDonnell explained that “in my opinion the arm would have to have been up in this position, up above the shoulder.” The defense’s other expert, Mr. Epstein, agreed that the victim’s head was upright at the time of the shooting, but was unable to determine whether McQueen’s arm was up or down. Dr. Vincent Di Maio also testified for the defense as an expert in forensic pathology.

After reviewing the autopsy report and other evidence, he concluded that McQueen died “as the result of a self-inflicted gunshot wound; that this case is a suicide.” Dr. Di Maio observed that the contact wound was to McQueen’s right temple, the most common area for self-inflicted wounds, noting that contact wounds appear in 97.9 percent of such cases. He also indicated that the gun appeared to have been held at an angle considered normal when someone puts a gun to his own head. Dr. Di Maio also based his conclusion on the fact that there was a “tremendous amount” of gunshot residue on McQueen’s hands; McQueen had at least a .13 blood alcohol level; that there was “an alleged history of depression or separation;” there was no evidence of a struggle; and, that “there doesn’t seem to be any motive for it to be a homicide.” He concluded his direct examination by testifying: “I don’t doubt it’s a suicide.” 5 In addition to the various investigators and experts, both parties called other witnesses to testify regarding their observations of McQueen and appellant. McQueen and appellant were good friends, and, according to appellant’s statement, ⁵¹⁴ best friends.

No one testified to any conflict between the two, especially on the night of the incident. However, Ronnie McKay did testify that McQueen told him he did not want to live with appellant, “[bjecause he said, you know, Gary is not right in the head.” McQueen’s former girlfriend, Shaieyann Williams, testified that McQueen broke up with her sometime before the summer of 2006, but the break-up was a mutual understanding and that, afterwards, they continued to remain friends. McQueen did not seem depressed from his experience in the military, and seemed happy to end that career and to move forward with his plans to go to college. McQueen’s friend and former fellow Ranger, Justin Jones, testified that he and McQueen were deployed together in Afghanistan, where McQueen was an intelligence analyst.

According to Jones, McQueen spent most of his time at a central base location. After returning to the United States, Jones confirmed that McQueen was excited to leave the military and go on to college. 6 While McQueen was visiting Jones in North Carolina, McQueen became romantically involved with Tina Warner. On or around September 8, 2006, McQueen told Jones that he thought Warner might be pregnant, but that concern ultimately turned out to be unfounded. Jones also testified that McQueen told him about being arrested for “a DUI in Atlanta” over that summer, but that McQueen “was pretty calm about it,” and acted as if it were “[n]o big deal.” 7 Rosemary Smith, appellant’s mother, testified that she knew McQueen, and that she had seen McQueen handling her .38 ⁵¹⁵ revolver.

On some occasion, Smith let McQueen borrow the gun and take it to a shooting range. Smith claimed that McQueen told her that he was not ready to go to college; he wanted to get a job; and, that he was still having difficulty with the break up with Shaieyann Williams. McQueen also smoked and drank a lot while he was in her presence. Finally, there was a significant amount of testimony concerning appellant’s deployments overseas and his experience in the Rangers.

Notably, Teru Hayashi, appellant’s direct line supervisor in Iraq, testified that, on one occasion, while he was travelling in a Humvee with appellant, appellant left his loaded M-4 rifle, set to the fire position, in an unsafe position inside the vehicle. The loaded M-4 rifle was pointed at the driver of the Humvee. On another occasion back in the United States, Ian Sutherland, a fellow Ranger, attended a barbecue at appellant’s home. During that party, appellant sat down next to Sutherland on the couch and began loading an automatic pistol with .9 millimeter hollow point ammunition while the barrel of the pistol was pointed at Sutherland’s leg.

Sutherland gestured for appellant to “pay attention” to what he was doing and both of the men then moved away. Sutherland also testified that he had been deployed with appellant in Afghanistan, and that, based on his experience, he was of the opinion that appellant was “[ljess than honest” and would embellish the truth and tell “mixed stories.” William Ryan, a Chief Warrant Officer and Intelligence Analyst in the Army, knew appellant while they were stationed together at Fort Benning, Georgia. In that community, appellant had a reputation for telling tales and was known to lie. We shall include additional facts in the following discussion.

DISCUSSION I. Appellant first contends the trial court erred in not admitting evidence of McQueen’s state of mind, stating that “the ⁵¹⁶ trial court refused to permit testimonial evidence of the decedent’s statements to a police officer after he had been arrested for a DWI a mere month-and-half before his death, which was critical to Appellant’s theory of defense.” The State responds that the trial court properly exercised its discretion and that any error was harmless beyond a reasonable doubt. We conclude that the trial court neither erred nor abused its discretion. Moreover, any error was harmless beyond a reasonable doubt. Towards the end of Justin Jones’s testimony, the State inquired if defense counsel intended to call Officer John Hegger, of the Acworth City Police Department in Georgia, concerning McQueen’s prior arrest for driving while intoxicated.

Defense counsel indicated that was his intention, and proffered that, during that arrest, McQueen told the officer: “I saw a lot of bad stuff over there,” and “this is the last thing I need on top of all the other shit, or all the other stuff, bad stuff going on in my life.” The court questioned the relevance of the statements, noting at one point that the arrest occurred one month prior to the shooting. Defense counsel maintained that the statements went to the victim’s state of mind. After counsel directed the court’s attention to Case v. State, 118 Md.App. 279 , 702 A.2d 777 (1997), the court agreed that evidence of the victim’s state of mind may be “consequential,” but that “I’m not going to let you go back into infinity and come up with some comment that a person made in a set of circumstances that standing alone are traumatic.” After further discussion, and after the parties unsuccessfully attempted to contact the police officer from Georgia, the State recalled Justin Jones to the stand. Jones informed the jury that McQueen had been arrested for a DUI in Atlanta about a month before he died, and that “he didn’t really care too much about it.” Further, “any given night at Ranger Regiment any of us could have gotten a DUI for drinking and driving.

It just so happened that he got it, you know.” McQueen was “pretty calm about it,” and that it was “[n]o big deal.” ⁵¹⁷ The next day, during a break in Detective Drewry’s testimony about appellant’s statement, defense counsel returned to this issue, contending that, based on out-of-state authorities, a suicidal testimony may be shown where “death may have been produced by the deceased or there is not positive and direct proof of homicide.” Defense counsel agreed there were no Maryland cases on point. The State responded that it had spoken to Officer Hegger, and that McQueen’s case was a “stereotypical DUI, DWI arrest, swerving and all that,” and that, while they were “waiting around for 20 minutes for the intox machine to get working or whatever you got to do, and one statement he says is, ‘This is the last thing I need in my life.’ ” The State argued that such a statement under such circumstances “doesn’t make it signs of suicide in any way whatsoever.” Further, “[fit’s a statement any person would make after a DWI.” After hearing further argument, the court specifically considered Robinson v. State, 66 Md.App. 246 , 503 A.2d 725 , cert. denied, 306 Md. 289 , 508 A.2d 489 (1986), and concluded that the proffered evidence was inadmissible. The trial court found that McQueen’s statement to the Georgia police officer was “very remote. It’s 30 days ago before the incident.” The trial court ruled that the statements were neither relevant nor trustworthy evidence of McQueen’s state of mind, stating: Being placed under arrest and charged with an offense of DUI or, quite frankly, being placed under arrest and charged with anything, I think it’s a reasonable inference that that in itself is traumatic, let alone what else might be going on in an individual’s life.

And to suggest that a person’s reaction to being arrested somehow is indicative of their suicidal thoughts is strained, strains our credulity. Several trial days later, defense counsel asked the court to reconsider its ruling. Counsel called Officer John Hegger outside the presence of the jury. Although he could not remember the exact date of the stop, Officer Hegger stopped McQueen in early August 2006 on suspicion of driving while impaired by alcohol.

After McQueen failed a number of field ⁵¹⁸ sobriety tests, he was placed under arrest, and transported to the police station. There, McQueen asked “if there’s anything he could do to get out of this,” and Officer Hegger informed him there was not. While they waited approximately twenty minutes for a breath testing machine to warm up, McQueen appeared depressed, put his hands down on his head, and said “this is the last thing I need in my life right now, on top of all the other, excuse my wording, other shit going on in my life.” McQueen also spoke about Iraq and Afghanistan, claiming that he had been shot while overseas. Although McQueen attempted to show Officer Hegger where he was wounded, Officer Hegger did not see any such wound.

McQueen then took the breath test, and the test was positive for alcohol in the amount of approximately twice the legal limit in Georgia. After Officer Hegger was excused, the trial court again ruled that this testimony was remote and not relevant. The court stated: “It won’t be helpful at all, that it was a traumatic experience, that I think it’s a reasonable, I think I can take a reasonable inference, nobody likes getting arrested for DWI.” The court further stated that the fact that “a person would say, I don’t want this, can I get out of it, I’ve got a lot going on in my life,” after being arrested under such circumstances, was not relevant to prove that that person committed suicide. It is ordinarily within the sound discretion of the trial court to determine the admissibility of evidence.

See Sifrit v. State, 383 Md. 116, 128 , 857 A.2d 88 (2004); Conyers v. State, 354 Md. 132, 176 , 729 A.2d 910 , cert. denied, 528 U.S. 910 , 120 S.Ct. 258 , 145 L.Ed.2d 216 (1999); see also Md. Rule 5-104(a) (stating the “[p]reliminary questions concerning ... the admissibility of evidence shall be determined by the court”). Thus, a trial court’s evidentiary ruling should not be disturbed absent error or a clear abuse of discretion. Conyers, 354 Md. at 176 , 729 A.2d 910 . Reversal is only required if “the evidence is plainly inadmissible under a specific rule or principle of law or there is a clear showing of an abuse ⁵¹⁹ of discretion.” Merzbacher v. State, 346 Md. 391, 405 , 697 A.2d 432 (1997).

Appellant primarily relies on Case, supra, 118 Md.App. 279 , 702 A.2d 777 . There, Case conceded on appeal that the evidence was sufficient to show that he broke into his former girlfriend’s home and “caused her death by shooting her in the head with a handgun he had stolen from his cousin the day before.” Id. at 282 , 702 A.2d 777 . Case raised several issues on appeal, including a claim that the court erred in admitting evidence that the victim made statements indicating that she feared Case. Id. at 283 , 702 A.2d 777 .

We disagreed, observing that the defense theory was that the victim invited Case to her home and that the gun went off by accident. Id. Under these circumstances, we concluded that “the victim’s state of mind was of significant consequence to the issue of whether she had invited appellant into her home and had voluntarily positioned herself close enough to him that she would become the victim of an accidental shooting.” Case, 118 Md.App. at 284 , 702 A.2d 777 (citing Maryland Rule 5-401). Appellant seeks to expand the holding of Case to instances where the “issue is suicide or homicide.” Notwithstanding the distinction that there was no dispute in Case that the appellant there was the shooter, we need not decide whether Case should be expanded because we agree with the trial court that the evidence was too remote and was not reliable circumstantial evidence of McQueen’s state of mind at the time of the shooting.

The trial court based its decision on Robinson, 66 Md.App. 246 , 503 A.2d 725 , and we agree that case is instructive. In that case, the appellant shot the victim on September 3, 1984. Id. at 248 , 503 A.2d 725 . After the State introduced evidence from an owner of a gun shop that the appellant bought a gun on August 4, 1984, the defense sought to elicit whether appellant told the gun shop owner why she bought the gun.

Id. at 252 , 503 A.2d 725 . The trial court sustained the State’s objections to these questions. Id. ⁵²⁰ On appeal, we considered whether the evidence should have been admitted under the common law “state of mind” exception to the rule against hearsay. Id. at 256 , 503 A.2d 725 . 8 We explained that this exception “embraces two subspecies: 1) a declaration of present mental or emotional state to show a state of mind or emotion in issue, and 2) a declaration of intention offered to show subsequent acts of [the] declarant.” Id. at 257 , 503 A.2d 725 .

We then observed that the mental state at issue in Robinson was whether the gun was fired accidentally or was fired with a malicious intent. Id. The trial court excluded the evidence about whether appellant told the gun shop owner why she purchased the gun a month before the shooting on the grounds of: (1) lack of relevance due to remoteness; and, (2) lack of trustworthiness. Id.

We agreed that the evidence was properly excluded under either of those rationales. Id. at 257-58 , 503 A.2d 725 . On the issue of remoteness, we stated: Since, however, the duration of states of mind or emotion varies with the particular attitudes or feelings at issue and with the cause, it is reasonable to require as a condition of invoking the continuity notion that the declaration mirror a state of mind which, in light of all the circumstances including proximity in time, has some probability of being the same condition existing at the material time. Where there is room for doubt, the matter should be left to the discretion of the trial judge.

Id. at 258 , 503 A.2d 725 (citation omitted); see also Purviance v. State, 185 Md. 189, 198 , 44 A.2d 474 (1945) (“The question of excluding evidence because of remoteness rests largely in the sound discretion of the trial judge”). Cf. McCray v. State, 305 Md. 126, 140-141 , 501 A.2d 856 (1985) (“[E]vidence of declarations of a plan, design or intention presently entertained by ⁵²¹ the declarant is, subject to the usual limitations as to remoteness in time and apparent sincerity common to all declarations of mental state, admissible when offered as evidence that the design was carried out by acts or omissions of the declarant”). As in Robinson , McQueen’s statement in early August 2006 as to his state of mind did not go directly to show anything about his state of mind on September 26, 2006, the night he sustained a gunshot wound to his head.

Moreover, even if there were “room for doubt,” we are persuaded that the matter was appropriately left to the discretion of the trial judge. Additionally, as in Robinson , there still “loom[s] the insurmountable evidentiary hurdle of untrustworthiness.” Robinson, 66 Md.App. at 260 , 503 A.2d 725 . As we stated, “with respect to this and any other spontaneous declaration, there must be assurances of reliability.” Id. Further, “such declarations, ‘must appear to have been made in a natural manner and not under circumstances of suspicion.’ ” Id.

(citation omitted). Here, the trial court specifically addressed the trustworthiness of the statements when it stated: “I find there’s just not one scintilla of evidence to suggest that the reaction to being arrested for a serious charge and comments made during that process was somehow related to any notions of suicide.” We discern neither error nor abuse of discretion in the court’s ruling, and we concur that the statements were too remote and untrustworthy to the fact sought to be proved, i.e., that McQueen committed suicide because he was somehow distraught, in whole or in part, about the prior arrest for driving under the influence or while intoxicated. Further, we agree that any error was harmless beyond a reasonable doubt in this case. In criminal cases, “error is harmless if a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict.” State v. Blackwell, 408 Md. 677, 698 , 971 A.2d 296 (2009) (internal quotation marks and citations omitted); see ⁵²² also Dorsey v. State, 276 Md. 638, 659 , 350 A.2d 665 (1976) (error will be harmless when reviewing court, upon independent review, is able to declare a belief beyond a reasonable doubt that there is no reasonable possibility that the error contributed to the verdict); Clark v. State, 140 Md.App. 540, 565 , 781 A.2d 913 (2001) (error for appellate purposes “may not be predicated upon a ruling that admits or excludes evidence unless the party is prejudiced by the ruling” (citing Md. Rule 5-103(a))), cert. denied, 368 Md. 527 , 796 A.2d 695 (2002).

Initially, we note that the State contends that the omission of Officer Hegger’s testimony was harmless because several witnesses testified that McQueen was not distraught or upset about the prior arrest in Georgia. That there was contradictory evidence of the decedent’s good state of mind does not render omission of Officer Hegger’s testimony harmless. Instead, any error was harmless because there was ample other evidence which permitted the jury to consider whether McQueen’s death was, in fact, a suicide. As appellant’s counsel notes elsewhere in his brief, the blood spatter evidence was “pivotal in this case.” One of the defense experts, Professor MacDonnell, opined that McQueen’s right arm was upright and above shoulder level at the moment of impact.

The jury could rationally consider whether McQueen was holding the gun at that point based on this testimony. Another defense expert, Dr. Di Maio, clearly testified that McQueen died “as the result of a self-inflicted gunshot wound; that this case is a suicide.” Even Dr. Allan conceded that contact gunshot wounds are common in suicides, and many people will not leave notes or announce to family members that they are considering suicide. There was also little evidence suggesting a conflict between McQueen and appellant, especially on the night in question. Finally, the jury heard, through appellant’s statement, that it was appellant’s opinion that McQueen “killed himself.” ⁵²³ Thus, there was a sufficient basis for the jury to determine whether McQueen died at his own hands or at the hands of appellant.

Indeed, we note that during jury selection, the jury was asked if they, or a family member, had ever attempted suicide, and twenty-one prospective jury members responded affirmatively to the question. The defense theory was clear, and exclusion of the evidence that the victim had been arrested for drunk driving one month before the shooting was harmless beyond a reasonable doubt.

II

Appellant next contends that the court erred in propounding an instruction on voluntary intoxication, over defense objection, because it was not generated by the evidence. Appellee counters that the instruction was generated and that it was not error for the court to give the instruction over appellant’s objection. While we agree with appellant that the instruction was not generated by the evidence, we also hold that the instructional error was harmless beyond a reasonable doubt. At the conclusion of all the evidence, the State requested the court to give the pattern voluntary intoxication instruction.

The State argued that a State’s witness, Lara Budeit, had testified that appellant was drunk when he called her at 11:30 p.m. on the night in question. Appellant’s trial counsel objected, stating: “We’re not asking for that.” After the State responded, the court observed that there was no direct evidence that appellant was intoxicated, only that “according to that witness, but that’s not evidence that he was drunk. That’s evidence that that witness believed he was drunk.” However, after noting the quantity of alcohol consumed, as well as the smoking of marijuana, the court ruled that there was “a reasonable inference ... that a person was intoxicated..." Appellant’s defense counsel maintained that he was not asserting voluntary intoxication as a defense and that it was inappropriate to give the instruction over defense objection. Counsel directed the court to Hardaway v. State, 317 Md. 160 , ⁵²⁴ 562 A.2d 1234 (1989), a case where the Court of Appeals reversed because the trial court, over defense objection, instructed the jury that the defendant had a constitutional right not to testify and that no adverse inference should be drawn from the defendant’s election of that right.

The trial court in this case observed that Hardaway concerned a constitutional right, and that defense counsel was comparing “apples and hand grenades.” The State responded that Evans v. State, 28 Md.App. 640, 722 , 349 A.2d 300 (1975), supported its position that the voluntary intoxication instruction could be given over defense objection. In that case, this Court recognized that, ordinarily, “the defendant is obliged to start matters off by putting in some evidence of his defense.” Id. at 723 , 349 A.2d 300 . However, this Court also acknowledged that the prosecution could present evidence of an affirmative defense, and that, in such an instance, “the matter of defense is properly an issue though the defendant himself produces nothing further to support it.” Id. The prosecutor further analogized to Hook v. State, 315 Md. 25 , 553 A.2d 233 (1989), also a murder case concerning the defense of voluntary intoxication, where the Court of Appeals held it was error to permit the State to not pros a lesser included offense over defense objection.

Id. at 42-44 , 553 A.2d 233 . The court accepted the analogy, stating that “[n]o one can suggest that the evidence in this case doesn’t generate that instruction,” and therefore, the instruction was appropriate and would be given to the jury. In response, defense counsel contended that depraved heart murder and involuntary manslaughter were not lesser included offenses and that it would be inappropriate to give those instructions. 9 The prosecutor responded that there was sufficient evidence for the jury to decide whether appellant acted with reckless disregard for human life in this case by putting a gun to the victim’s head and pulling the trigger. ⁵²⁵ Thereafter, in addition to instructing the jury as to first degree murder, second degree specific intent murder and second degree murder with intent to commit serious bodily harm, the court gave the pattern instructions for second degree depraved heart murder and involuntary manslaughter — grossly negligent act. See Maryland State Bar Ass’n, Maryland Criminal Pattern Jury Instructions 4:17.8(A), (B), at 258-59 (2006) (“MPJI-Cr”).

The court also gave an instruction on voluntary intoxication that substantially mirrored the pattern instruction for Voluntary Intoxication/Specific Intent. 10 Maryland Rule 4-325(c) requires that a trial court “give a requested instruction that correctly states the applicable law and that has not been fairly covered in other instructions.” General v. State, 367 Md. 475, 485 , 789 A.2d 102 (2002). Pursuant to the Rule, a requested instruction must be given “ ‘when the following three-part test has been met: (1) the instruction is a correct statement of law; (2) the instruction is applicable to the facts of the case; and (3) the content of the instruction was not fairly covered elsewhere in instructions actually given.’ ” LaPin v. State, 188 Md.App. 57, 69 , 981 A.2d 34 (2009) (quoting Dickey v. State, 404 Md. 187, 197-98 , 946 A.2d 444 (2008)). As this Court has stated, “[tjhis rule ‘has been interpreted to require that a requested instruction be given only where there is evidence in the record to support it.’” Flores v. State, 120 Md.App. 171, 193 , 706 A.2d 628 (1998) (quoting Hof v. State, 337 Md. 581, 612 , 655 A.2d 370 (1995)); accord Dishman v. State, 352 Md. 279, 292 , 721 A.2d 699 (1998). The issue is whether there was sufficient evidence to generate a voluntary intoxication instruction.

It is well settled law in Maryland that “[vjoluntary intoxication, although it will never be allowed to negate a general criminal intent, may, if sufficient, be found to have eroded a specific ⁵²⁶ intent.” Wieland v. State, 101 Md.App. 1, 32 , 643 A.2d 446 (1994). The degree of intoxication required to negate specific intent, however, is substantial. Shell v. State, 307 Md. 46, 61 , 512 A.2d 358 (1986). In State v. Gover, 267 Md. 602 , 298 A.2d 378 (1973), the Court of Appeals held: [Vjoluntary drunkenness can be a defense to a specific intent crime, but the degree of intoxication which must be demonstrated to exonerate a defendant is great.

Evidence of drunkenness which falls short of a proven incapacity in the accused to form the intent necessary to constitute the crime merely establishes that the mind was affected by drink so that he more readily gave way to some violent passion and does not rebut the presumption that a man intends the natural consequences of his act. Id. at 607-08 , 298 A.2d 378 ; see also Lewis v. State, 79 Md.App. 1, 12-13 , 555 A.2d 509 (“[T]he single fact that one has consumed what some may consider to be an inordinate amount of alcohol, standing alone, with no evidence as to the effect of that alcohol on the defendant, would not permit a jury reasonably to conclude that he had lost control of his mental faculties to such an extent as to render him unable to form the intent to murder or to maim”), cert. denied, 316 Md. 549 , 560 A.2d 1118 (1989). In his brief to this Court, appellant cites several cases where courts in this State have addressed whether a trial court’s decision not to give a voluntary intoxication instruction constitutes an abuse of discretion. See Lewis, 79 Md.App. at 8 , 555 A.2d 509 (holding that trial court did not err in not giving a voluntary intoxication instruction); Mock v. State, 2 Md.App. 771, 775 , 237 A.2d 811 (1968) (upholding trial court’s decision not to give a voluntary intoxication instruction); see also State v. Gover, 267 Md. at 608 , 298 A.2d 378 (affirming this Court’s decision to remand for a new trial where, in a court trial, the court did not consider whether defendant’s voluntary intoxication negated the mens rea necessary to support the conviction).

However, neither party has cited a controlling case concerning whether the giving of a voluntary ⁵²⁷ intoxication instruction over defense objection amounts to reversible error. We have found a number of out-of-state cases where courts have held that it was not reversible error to give a voluntary intoxication instruction over defense objection where there was some evidence of intoxication. See People v. Loden, 27 Ill.App.3d 761 , 327 N.E.2d 58, 61 (1975) (concluding court did not err in giving intoxication instruction over defense objection because some evidence of defendant’s intoxication had been introduced in an exculpatory manner); State v. Jenkins, 412 N.W.2d 174, 177 (Iowa 1987) (concluding that, where there was evidence defendant was intoxicated, trial court did not err in giving intoxication instruction, as well as insanity defense instruction, over defense objection); Lawrence v. State, 3 So.3d 754, 758-59 (Miss.Ct.App.2008) (holding, in a case where there was evidence of intoxication, that the trial court did not err in giving voluntary intoxication instruction over defense objection), cert. denied, 11 So.3d 1250 (Miss.2009); State v. Johnson, 207 S.W.3d 24, 43-44 (Mo.2006) (holding there was no plain error in giving a voluntary intoxication instruction over defense objection that the instruction distracted the jury from a defense of diminished capacity), cert. denied, 550 U.S. 971 , 127 S.Ct. 2880 , 167 L.Ed.2d 1156 (2007); State v. Lamb, 213 Neb. 498 , 330 N.W.2d 462, 468 (1983) (rejecting defendant’s claim that instruction on intoxication over defense objection violated defendant’s right to attorney-client privilege and denied due process where the instruction was supported by evidence and was not prejudicial); see also Dunlop v. State, 724 N.E.2d 592, 595 (Ind.2000) (holding, in a case where defense expert opined that defendant was suffering a mental disorder caused by cocaine intoxication at the time of the crime, that trial court erred in giving a specific voluntary intoxication instruction over defense objection, but the error was harmless beyond a reasonable doubt). In addition to these cases, our research has led us to one case where the court found reversible error where there was an absence of sufficient evidence of intoxication, and the instruction was given over defense objection.

See State v. ⁵²⁸ Woods, 249 Neb. 138, 542 N.W.2d 410, 416 (1996) (reversing where trial court gave intoxication instruction over defense objection, because defendant made no attempt to rely on voluntary intoxication as a defense, where the evidence did not support a finding of intoxication, and where the instruction could have materially influenced the jury to reject defendant’s claim of self-defense). As he did in the trial court, appellant primarily relies on Hardaway v. State, 317 Md. 160 , 562 A.2d 1234 (1989). In Hardaway , defense counsel requested that the trial court not instruct the jury that Hardaway had a right not to testify and that no adverse inference should be drawn from his failure to testify. Id. at 161 , 562 A.2d 1234 .

On appeal, Hardaway maintained that the instruction “may inadvertently harm a defendant by calling to the jury’s attention the defendant’s election not to testify.” Id. at 163 , 562 A.2d 1234 . The State responded that the instruction could not be improper because it benefits the defendant. Id. The Court of Appeals agreed with Hardaway and held that giving the instruction, over defense objection, amounted to reversible error.

Id. at 169 , 562 A.2d 1234 . Recognizing that the instruction is a constitutional right of the defendant, the Court reasoned: “Since the instruction is a right of the defendant, for his benefit, but because the beneficial effect of the instruction may be uncertain in some circumstances, it follows that the decision whether the instruction is given should lie with the defendant.” Id. at 167 , 562 A.2d 1234 . The Court of Appeals subsequently distinguished Hardaway in Carter v. State, 366 Md. 574 , 785 A.2d 348 (2001). In Carter , the Court ultimately reversed because: (a) the trial court abused its discretion in denying several motions for mistrial based on two instances during trial when the jury heard unsolicited other crimes evidence; and, (b) when the prosecutor referred to prejudicial facts not in evidence during closing argument.

Carter, 366 Md. at 590-92 , 785 A.2d 348 . While those were the bases for the Court’s reversal, the Court also considered whether the trial court erred in giving caution ⁵²⁹ ary instructions following the unsolicited other crimes evidence, over defense objection. Id. at 582 , 785 A.2d 348 . The petitioner maintained that “the defense should have an absolute right to refuse a curative instruction that carries the potential for highlighting the prejudicial information.” Id.

On this issue, the Court disagreed with petitioner. Id. at 586-88 , 785 A.2d 348 . Concluding that Hardaway, supra, was distinguishable because that case involved the defendant’s constitutional right against self-incrimination, the Court stated: In contrast, a defendant’s right not to have evidence of prior bad acts admitted in evidence is derived from statute, evidentiary rules, and the common law. Unlike the situation in Hardaway , a defendant does not have an absolute right to a curative instruction regarding the inappropriate admission of prejudicial evidence.

Correspondingly, a defendant does not have an absolute right to waive, reject, or veto the court’s decision to give such an instruction. Carter, 366 Md. at 587 , 785 A.2d 348 . Further, the Court observed that “a curative instruction is not always for the sole benefit of the defendant. The public has an interest in the conduct of ‘fair trials designed to end in just judgments,’ ” and “[j]ury instructions guide deliberations of the jury and benefit the State and the public.” Id.

(citations omitted). Moreover, after stating that the curative instruction was designed to “guide the jury in its receipt of the evidence,” the Court also stated: “We are not dealing here with the waiver of a constitutional protection, but rather with the exercise of the trial court’s duty to all participants in the criminal justice system-the defendant, the State, and the jury.” Id. As the Court of Appeals did in Carter , we conclude that Hardaway is distinguishable from the instant case. Indeed, the Supreme Court has ruled that a voluntary intoxication defense is not a fundamental right protected by federal due process: In sum, not every widespread experiment with a procedural rule favorable to criminal defendants establishes a ⁵³⁰ fundamental principle of justice.

Although the rule allowing a jury to consider evidence of a defendant’s voluntary intoxication where relevant to mens rea has gained considerable acceptance, it is of too recent vintage, and has not received sufficiently uniform and permanent allegiance, to qualify as fundamental, especially since it displaces a lengthy commonlaw tradition which remains supported by valid justifications today. Montana v. Egelhoff, 518 U.S. 37, 51 , 116 S.Ct. 2013 , 135 L.Ed.2d 361 (1996). Therefore, we conclude that whether the instruction was requested by the defense or the State is not determinative. As is settled with claims of instructional error, the issue is simply whether the instruction was an accurate statement of law and was generated by the evidence actually admitted at trial.

In this case, there is no dispute concerning the instruction’s accuracy. Instead, appellant’s claim concerns whether the instruction was generated. Based on our review, we are persuaded that the evidence of intoxication does not rise nearly to the level necessary to generate a voluntary intoxication instruction. We explain.

To be sure, there was evidence that appellant consumed a good deal of alcohol over the course of the evening. Starting at around 5:30 or 6:00 p.m., appellant drank a couple of beers and smoked some marijuana at home in the early evening prior to going to the VFW, where he drank five or six mixed drinks over a two to three hour period. After that, he drank one beer at the Village Café before returning home between 11:30 p.m. and midnight. While the consumption of approximately nine alcoholic beverages over an approximately six hour span may seem like an inordinate amount of alcohol, that in itself, “with no evidence as to the effect of that alcohol on the defendant, would not permit a jury reasonably to conclude that he had lost control of his mental faculties to such an extent as to render him unable to form the intent to murder or to maim.” Lewis, 79 Md.App. at 12-13 , 555 A.2d 509 . ⁵³¹ Further, there was no clear evidence of the effect of the alcohol on the appellant or that appellant was intoxicated.

Carl Davis, who saw appellant at the VFW, testified that he talked with and played pool with appellant and that appellant seemed to be having a good time. He did not testify that appellant seemed drunk. Likewise, Lynsay Dodd, who was working at the Village Café, testified that she saw appellant there, but she did not testify that appellant seemed drunk. Furthermore, Officer Gregg Knott, of the Montgomery County Police, testified that he did not detect a strong odor of alcohol on appellant’s person when he transported him to the police station at around 2:30 a.m.

At the police station, when asked how he felt, appellant replied that he felt “[s]ober as I’ve ever fucking been.” The State’s request for the voluntary intoxication instruction rested primarily on the testimony of Lara Budeit. At around 11:40 p.m. the evening of the shooting, appellant called Lara Budeit, a friend from high school. Budeit testified that when she picked up the phone, she believed appellant was “drunk dialing” her. Budeit explained that “[djrunk dialing is something you do when you’re drunk and you call somebody you haven’t talked to in a long time.” During the phone conversation, appellant seemed upset, and both appellant and Budeit “agreed that people suck.” Budeit did not know what upset appellant, and, when asked whether he appeared intoxicated, Budeit responded, “I, he repeated himself a couple times.

He told me how great of a friend I was and he repeated that like five or six times.” Appellant may also have called Deborah Hale at around 11:00 p.m. on the night in question. While Hale recalled telling the prosecutor and a detective during an interview that appellant had called her “drunk” on a number of occasions, Hale could not remember if that occurred on September 25, 2006. This evidence was not sufficient to support the voluntary intoxication instruction in this case. Indeed, Budeit never specifically testified that appellant was intoxicated, responding ⁵³² only that he repeated himself and told her how great a friend she was.

Additionally, while appellant had been “drunk” when he called Hale on several occasions, Hale was not sure if appellant was drunk when he called her on the night in question. Hence, even assuming an inference could be drawn that appellant was intoxicated, suffice it to say that no reasonable juror could infer from their testimony that appellant “was so intoxicated that he was robbed of his mental faculties or that he did not appreciate what he was doing.” Lewis, 79 Md.App. at 8 , 555 A.2d 509 . Accordingly, the voluntary intoxication instruction was not generated by the evidence in this case. Having concluded that the trial court erred in giving the instruction, we turn to whether that error was harmless beyond a reasonable doubt.

See Hedgpeth v. Pulido, 555 U.S. 57 , 129 S.Ct. 530, 532 , 172 L.Ed.2d 388 (2008) (per curiam) (“harmless-error analysis applies to instructional errors so long as the error at issue does not categorically ‘vitiate all the jury’s findings’ ”) (emphasis in original, citation omitted); see also Alston v. State, 414 Md. 92, 107-08 , 994 A.2d 896 (2010) (restating the standard for whether an error in a criminal case may be harmless); Martin v. State, 165 Md.App. 189, 204 , 885 A.2d 839 (2005) (concluding that even failure to instruct on an offense does not constitute structural error and any error is subject to harmless error review), cert. denied, 391 Md. 115 , 892 A.2d 478 (2006). As we have indicated, we agree with appellant’s suggestion that the evidence in this case did not generate a voluntary intoxication instruction. Implicit in this conclusion is that appellant was not so intoxicated that he could not form a specific intent to commit the charged crimes, including the first degree murder count. Given this, it is questionable how the voluntary intoxication instruction prejudiced the defense.

As a matter of fact, appellant was acquitted of first degree murder, second degree specific intent murder, and second degree murder with intent to inflict serious bodily harm. ⁵³³ Moreover, the instruction did not state that the jury must find appellant guilty of depraved heart murder based on the appellant’s intoxication. Instead, the jury simply was instructed that they “should consider depraved heart murder.” (emphasis added). That charge was properly submitted to the jury. Looking to the indictment, the first count charged appellant with the murder of McQueen, using the short form authorized by Md.Code (2002, 2010 Supp.), § 2-208 of the Criminal Law Article (“C.L.”).

Charging appellant under that statutory form was sufficient to also charge appellant with second degree murder. See Dishman, 352 Md. at 289-90 , 721 A.2d 699 (reaffirming that a short form indictment “alleging first degree murder also charges second degree murder and manslaughter”) (emphasis omitted); see also Blackwell v. State, 278 Md. 466, 476 , 365 A.2d 545 (1976) (“In first degree murder indictments filed pursuant to this provision, it is well settled that murder in the second degree and manslaughter are lesser included offenses”), cert. denied, 431 U.S. 918 , 97 S.Ct. 2183 , 53 L.Ed.2d 229 (1977); State v. Evans, 278 Md. 197 , 199 n. 1, 362 A.2d 629 (1976) (“Under such an indictment the accused could be found guilty of the lesser offenses of murder in the second degree and manslaughter”); McMillan v. State, 181 Md.App. 298, 351 , 956 A.2d 716 (“[Appellant’s indictment, which conformed in every relevant way with the statutory form specified in C.L. § 2-208, invested the circuit court with jurisdiction to try him for murder of any variety— including felony-murder”), cert. granted, 406 Md. 744 , 962 A.2d 370 (2008). 11 Appellant’s position appears to be that he wanted the jury to decide simply whether McQueen died of a homicide or ⁵³⁴ a suicide, "without any consideration of whether appellant’s voluntary intoxication negated his mental state to some degree. Appellant, in effect, wanted the jury to make an “all or nothing” choice. But, it is clear that a trial court may instruct on an uncharged lesser offense, even over defense objection.

See Hagans v. State, 316 Md. 429, 455 , 559 A.2d 792 (1989) (holding that convictions on uncharged lesser included offenses were proper, where prosecutor agreed with trial court’s decision to instruct the jury on those offenses over defense counsel’s objection); see also Smith v. State, 412 Md. 150, 170 , 985 A.2d 1204 (2009) (stating that the decision to submit an uncharged lesser included offense “presents an important choice for both parties: whether to submit an uncharged lesser included offense to the jury or hope that the jury will choose the desired result when it has an ‘all or nothing’ choice”) (emphasis added); Johnson v. State, 90 Md.App. 638, 646 , 602 A.2d 255 (1992) (“the trial judge, on the request of either party, must (1) properly instruct the jury on a lesser included offense fairly raised by the evidence; and (2) permit the jury to return a verdict on that offense”) (emphasis added). When the State asked the court to instruct the jury on depraved heart murder, the trial court could charge the jury to consider that offense, even over defense objection. Thus, to the extent appellant was concerned about the possibility of a compromise verdict, that possibility existed regardless of the voluntary intoxication instruction. Accordingly, we are not persuaded that appellant was prejudiced by the voluntary intoxication instruction under the circumstances of this case.