State v. Heath

Greene, J. In the present case, we consider whether a comment made by defense counsel in an opening statement invited the State to present, as evidence, a statement made by Respondent Nicholas Heath ("Mr. Heath") indicating his intention to sell cocaine. The State urges us to apply the opening the door doctrine to the facts of the present case, and hold that defense counsel, through her opening statement, opened the door to admitting, as evidence, Mr. Heath's stated intention. To resolve this issue we explore whether defense counsel's remarks triggered the opening the door doctrine, and if so, whether the responsive evidence offered by the State was a proportional response. For reasons we shall explain, we hold that the trial court erred in admitting irrelevant evidence and abused its discretion in weighing the proportionality of the contested portion of Mr. Heath's statement.

The error in doing so was not harmless; thus, we affirm the judgment of the Court of Special Appeals. FACTUAL & PROCEDURAL BACKGROUND Mr. Heath was charged with the murder of Tom Malenski ("Mr. Malenski") and the attempted murder of Martin Clay ("Mr. Clay"). The charges stemmed from an altercation that happened on September 25, 2014 at Ottobar, where Mr. Malenski and Mr. Clay were employed, in Baltimore City. The undisputed facts are that on the evening of September 25, 2014, Dustin Cunningham ("Mr. Cunningham") directed inappropriate comments toward Erica Davis ("Ms. Davis") and Ms. Davis's unidentified friend.

Mr. Heath, in an attempt to quell any hostility between Mr. Cunningham and Ms. Davis, offered an apology to Ms. Davis and her friend on Mr. Cunningham's behalf. Ms. Davis did not accept the apology. She, instead, directed Mr. Heath to inform Mr. Cunningham that he needed to apologize himself for the comments that he had made. Eventually, after continued antagonism between the individuals, the bouncers removed Mr. Cunningham from the bar.

Both Mr. Clay and Mr. Malenski aided the bouncers in removing Mr. Cunningham. Mr. Malenski was not working at Ottobar that night and Mr. Clay had gotten off of work at 11:00 p.m., but each were "hanging out" at Ottobar at the time of the altercation. Mr. Cunningham claimed that, once outside, the bouncers attempted to beat him up, so he ran away. Mr. Clay and Mr. Malenski ran down the street after Mr. Cunningham, but he successfully escaped.

Thereafter, Mr. Clay and Mr. Heath offered conflicting stories as to what happened. According to Mr. Clay, while he and Mr. Malenski were walking back to Ottobar, Mr. Heath came towards them with a knife. At first, Mr. Clay thought that Mr. Heath had punched him in the face, but he ultimately realized that he had been cut. Mr. Clay testified that, while Mr. Malenski was trying to "get in between" Mr. Clay and Mr. Heath, Mr. Heath slashed Mr. Malenski's throat.

Offering a different version of the events, Mr. Heath, in his recorded statement to the police, indicated that upon leaving Ottobar, he headed in the direction of where Mr. Cunningham had fled. According to Mr. Heath, the men who had chased Mr. Cunningham, including Mr. Clay and Mr. Malenski, were walking back toward Ottobar. The group of men approached Mr. Heath while he was trying to pass them. Mr. Heath's path was blocked, and the men began arguing with him.

Mr. Heath claimed that he saw Mr. Malenski pull out a knife. Mr. Heath, in trying to defend himself from an attack, told the men to back off. He explained that Mr. Clay probably got cut in the face while Mr. Heath was defending himself against the attack. Mr. Heath said that he intended to cut Mr. Malenski's deltoid muscle and that would have prevented Mr. Malenski from raising his arms.

Mr. Heath stated that he was "merely trying to 'disable' " Mr. Malenski. Unfortunately, according to Mr. Heath, Mr. Malenski lunged forward causing Mr. Heath to accidentally cut Mr. Malenski's neck instead of his shoulder. Although Mr. Clay's and Mr. Heath's stories diverged, it is undisputed that Mr. Heath cut Mr. Clay's face and Mr. Malenski's throat. Furthermore, it is uncontested that during the confrontation, Mr. Heath cut one of Mr. Malenski's arteries, which resulted in his death.

Mr. Heath was tried in the Circuit Court for Baltimore City for the first-degree murder of Mr. Malenski, the attempted first-degree murder of Mr. Clay, and other related charges. The substantive issue at trial was whether Mr. Heath acted with criminal intent or in self-defense. Mr. Heath did not testify at trial, so his version of the events was established by way of a recorded statement that he gave to the police during an interview on September 27, 2014. Prior to trial, and without the trial court's involvement, the parties entered into a stipulation and agreed to various redactions of Mr. Heath's statement to police. 1 The redacted portions of the statement related to Mr. Heath's selling of drugs as his primary source of income.

During her opening statement at trial, Mr. Heath's counsel made the following comment about Mr. Heath's purpose for going to Ottobar: Ladies and gentlemen, the young man that sits here [next to counsel] is Nicholas Heath. And just as the State described to you in regards to [Mr. Malenski and Mr. Clay], he too loved music, liked to hang out, had friends, was busy doing tattoos, that's one of his primary sources of income in order to pay a lawyer to get his wife from England to the United States. That was his goal and that was his purpose to stop by the Ottobar that night. His friend, Dustin Cunningham says lots of people there have tattoos or had tattoos, this is a good source.

(Emphasis added). The State did not object during defense counsel's opening statement. The State waited until its case-in-chief to respond to defense counsel's remark in opening that Mr. Heath was at Ottobar to find clients for his tattoo business. 2 Citing that remark, the State moved to unredact a portion of Mr. Heath's statement to the police, in which he said that he went to Ottobar intending to sell "white." 3 Specifically, the State sought to unredact and admit into evidence the following portion of Mr. Heath's statement: I mean look at nobody's being violent man. Nobody's went in there starting trouble.

I went in there to sit down to sell a got damn bit of white that they, I'm just trying to make a fucking living. And everybody around me is gotta act like an asshole. That's all I wanted to do. You know am I wrong?

Yeah. (Emphasis added). The State argued that defense counsel's remark, that Mr. Heath went to Ottobar for purposes related to his tattoo business, contradicted Mr. Heath's statement to the police and opened the door to Mr. Heath's "true" purpose for being at Ottobar, his intent to sell "white." 4 Defense counsel argued that opening statements are not evidence. Furthermore, according to defense counsel, regardless of the opening the door doctrine, the portion of the statement offered by the State was inadmissible bad acts evidence.

Defense counsel asserted that Mr. Heath's statement was "highly prejudicial [with] no probative [value]" and therefore should not be admitted. The trial court weighed the probative value and prejudicial effect of the contested portion of Mr. Heath's statement and reasoned that Mr. Heath's explanation for "being present [at Ottobar] ..." was probative of "the manner in which he is alleged to have conducted himself that evening." The trial judge expressed that he "would not have stricken that testimony, although some of the things which have been read, not everything would appear to be fully admissible even under the probative greater than prejudicial [sic] value of standard." Ultimately, the trial court "permit[ted] the State to unredact the testimony with regard to [Mr. Heath's] statement as to why he was there that night with regard to certain business operations." After the trial court's ruling, defense counsel requested, and was granted, a continuing objection to references to Mr. Heath's involvement in the "possession and distribution of controlled dangerous substances[.]" Additionally, the prosecutor clarified that the trial judge's ruling was limited to the portion of Mr. Heath's statement in which he says that he went to Ottobar intending to sell "white," and "that the rest of the references to [Mr. Heath] selling drugs is not probative[.]" The trial judge said, "Right." He explained that other references to selling drugs in Mr. Heath's statement to the police are "beyond the pale ... it's relevant only to that night and [Mr. Heath's] presence at Ottobar." Later in the trial, Mr. Heath's statement to the police, including the portion in which he said that he went to Ottobar intending to sell "white," was admitted into evidence over defense counsel's objection. A recording of Mr. Heath's statement was played in open court for the jury. Mr. Heath did not offer any evidence tending to establish that he visited Ottobar for reasons related to his tattoo business, or for any other reason.

Ultimately, the jury returned a verdict against Mr. Heath of guilty to involuntary manslaughter and second-degree assault. Mr. Heath appealed his convictions to the Court of Special Appeals. In an unreported opinion, our intermediate appellate court reversed the trial court's ruling that the door had been opened. Heath v. State , No. 2736, Sept. Term 2015, 2018 WL 3085156 , at ⁶ (Md. Ct. Spec.

App. June 21, 2018). First, the intermediate appellate court held that Mr. Heath's statement that he went to Ottobar to sell "white" constituted inadmissible bad acts evidence pursuant to Md. Rule 5-404. Id. at ⁸-11. Additionally, the court determined that Mr. Heath's counsel did not open the door during her opening statement.

Id. at ¹³. Alternatively, the court reasoned that, "[a]ssuming arguendo that [Mr. Heath's] counsel had 'opened the door,' the remedy - permitting the prior acts statement to come in - was not proportionate to the malady - impugning [Mr. Heath's] character in the eyes of the jury." Id. Ultimately, the Court of Special Appeals held that the trial court's error in allowing the statement into evidence was not harmless and therefore reversed and remanded the case for a new trial. Id. at ⁷.

The State petitioned this Court for a writ of certiorari and we granted the petition. State v. Heath , 461 Md. 458 , 193 A.3d 208 (2018). We now review whether the trial court erred when it determined that defense counsel opened the door to admitting the defendant's previously redacted statement based upon a comment made in her opening statement and, if so, whether admitting the defendant's statement in response was legal error and an abuse of discretion. 5 PARTIES' ARGUMENTS As a preliminary matter, the parties ask us to define the standard for reviewing whether a party has opened the door to the admissibility of responsive evidence. The State requests that we review this case as an application of the opening the door doctrine.

Mr. Heath, on the other hand, argues that the opening the door doctrine is not applicable here. In addition, the State asserts that we should reverse the Court of Special Appeals on the basis that the trial court did not abuse its discretion when it admitted into evidence Mr. Heath's statement regarding his intent to sell "white" at Ottobar. The State contends that the admission of Mr. Heath's statement was a proportional response to defense counsel's opening statement regarding Mr. Heath's intent to find tattoo clients at Ottobar. Mr. Heath argues, however, that even if the door was opened, Md. Rule 5-404 prohibits the admission of the rebuttal evidence that the State offered. 6 We hold that the general principles of the opening the door doctrine that allow a party "to meet fire with fire" permitted the trial judge to consider whether to admit into evidence Mr. Heath's statement that he intended to sell "white" at Ottobar.

The trial judge, however, failed to recognize that Mr. Heath's intention to sell drugs at Ottobar injected into the case evidence on a collateral issue. The introduction of a collateral issue and the evidence offered on that issue had nothing to do with the underlying criminal charges and exceeded one of the limitations to the introduction of responsive evidence under the "opening the door" doctrine. Another limitation under the "opening the door" doctrine is proportionality. Terry v. State , 332 Md. 329 , 338, 631 A.2d 424 , 428 (1993) (."[T]he remedy must be proportionate to the malady.").

The responsive evidence permitted by the trial judge was disproportionate because the jury would likely give more weight to a statement admitted into evidence than to a comment made in opening. This disproportionality stems from the instructions given to the jury. Specifically, the trial judge instructed the jury to make its decision based solely on the evidence admitted and not on what was said in opening statements. Regardless of whether the statement was a proportionate response, allowing the State to admit Mr. Heath's statement into evidence was substantially more prejudicial than probative under Md. Rule 5-403 and should not have been received.

Clearly, the statement was unfairly prejudicial in that it associated Mr. Heath with drugs and likely undermined his credibility with the jury. The jury had to evaluate Mr. Heath's version of what occurred at Ottobar on the evening of September 25, 2014, and his theory of self-defense. Given the unfair prejudicial impact that Mr. Heath's statement had on his credibility, and how that likely affected the jury's perception of him, we cannot say beyond a reasonable doubt that the jury's verdict was in no way influenced by the responsive evidence. In admitting the evidence, the trial judge risked the jury finding Mr. Heath guilty based on the inference that Mr. Heath was "up to no good." Therefore, the statement's admission at trial was not harmless error and Mr. Heath is entitled to a new trial.

STANDARD OF REVIEW The standard for reviewing whether the opening the door doctrine yields to the admissibility of evidence offered at trial was thoroughly reviewed in this Court's recent decision, State v. Robertson , 463 Md. 342 , 352-58, 205 A.3d 995 , 1000-1004 (2019). The framework for review is a familiar one. See id . Whether an opening the door doctrine analysis has been triggered is a matter of relevancy, which this Court reviews de novo .

Id. at 353 , 205 A.3d at 1001 . A trial court does not have discretion to admit irrelevant evidence. State v. Simms , 420 Md. 705 , 724-25, 25 A.3d 144 , 155 (2011) ("The de novo standard of review is applicable to the trial judge's conclusion of law that the evidence at issue is or is not of consequence to the determination of the action.") (quoting Parker v. State , 408 Md. 428 , 437, 970 A.2d 320 , 325 (2009) (cleaned up). Whether responsive evidence was properly admitted into evidence is reviewed for an abuse of discretion.

Robertson , 463 Md. at 358 , 205 A.3d at 1004 ; Simms , 420 Md. at 725 , 25 A.3d at 156 ("whether the evidence is inadmissible because its probative value is outweighed by the danger of unfair prejudice ... is [ ] tested for abuse of [ ] discretion."). Additionally, an error is harmless if a reviewing court can say, after an independent review of the record, that beyond a reasonable doubt, the error in no way influenced the verdict. Dorsey v. State , 276 Md. 638 , 659, 350 A.2d 665 , 678 (1976). This Court has held that an "[a]buse of discretion exists where no reasonable person would take the view adopted by the trial court, or when the court acts without reference to guiding rules or principles." Robertson , 463 Md. at 364 , 205 A.3d at 1007 (quoting Alexis v. State , 437 Md. 457 , 478, 87 A.3d 1243 , 1254 (2014) ) (cleaned up).

Relevance and the "Opening the Door" Doctrine Maryland Rule 5-401 provides the scope for the admission of evidence. The starting point for determining the admissibility of evidence is whether it is relevant. Relevant evidence is evidence having "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Md. Rule 5-401 (2018). The inverse of that rule, of course, is that "[i]rrelevant evidence is inadmissible." Simms , 420 Md. at 725 , 25 A.3d at 156 (citations omitted).

Maryland Rule 5-402 "makes it clear that the trial court does not have discretion to admit irrelevant evidence[.]" Id. at 724-25 , 25 A.3d at 155 (citation omitted). Once the first hurdle of legal relevancy is satisfied, the next consideration is "whether the evidence is inadmissible because its probative value is outweighed by the danger of unfair prejudice, or other countervailing concerns as outlined in Maryland Rule 5-403." Id. at 725 , 25 A.3d at 156 (citation omitted). Some evidence may be relevant but far too prejudicial to be admissible. See Md. Rule 5-403 (requiring a weighing of unfair prejudicial danger versus the probative value).

"Opening the Door" and Opening Statements An added layer to Maryland Rules 5-401 and 5-403 is the legal doctrine of "opening the door," which expands the rule of relevancy. The opening the door doctrine "authorizes admitting evidence which otherwise would have been irrelevant in order to respond to (1) admissible evidence which generates an issue, or (2) inadmissible evidence admitted by the court over objection." Clark v. State , 332 Md. 77 , 84-85, 629 A.2d 1239 , 1243 (1993). For example, the doctrine provides a remedy where one party introduces evidence that was previously irrelevant, over objection, and in doing so, makes relevant an issue in the case. As a remedial tactic, "the trial court may rule that the first party has 'opened the door' to evidence offered as a fair response by the opposing party that previously would have been inadmissible because irrelevant, but has now become relevant." 5 Lynn McLain, Maryland Evidence State and Federal , § 103:13(c)(i) at 82 (3rd ed. 2013).

Put another way, " 'opening the door' is simply a way of saying: 'My opponent has injected an issue into the case, and I ought to be able to introduce evidence on that issue.' " Clark , 332 Md. at 85 , 629 A.2d at 1243 . Although the "opening the door" doctrine expands the rule of relevancy, the doctrine has its limitations. The doctrine does not allow, for example, "injecting collateral issues into a case or introducing extrinsic evidence on collateral issues." Id. at 87 , 629 A.2d at 1244 . A collateral issue is one that is immaterial to the issues in the case.

See Hardison v. State , 118 Md. App. 225 , 239, 702 A.2d 444 , 451 (1997) (defining a "non-collateral fact" as one that is material to the issues in the case); see also Gray v. State , 137 Md. App. 460 , 481-85, 769 A.2d 192 , 204-06 (2001) (holding that testimony from a witness concerning her being raped was a collateral issue because the alleged rape existed only as an unproven allegation, testimony of the allegation was highly likely to lead the jury on a detour as to whether the rape had actually happened and would distract the jury). An additional limitation of the doctrine is consistent with Maryland Rule 5-403. That limitation excludes evidence if its probative value "is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Md. Rule 5-403 ; see also Clark , 332 Md. at 87 , 629 A.2d 1239 . 7 We echo an oft-repeated and well-established principle: opening statements are not evidence. See Ford v. State , 462 Md. 3 , 33, 197 A.3d 1090 , 1107 (2018) (citing Keller v. Serio , 437 Md. 277 , 288, 85 A.3d 283 , 289 (2014) ).

In Ford , we highlighted several definitions of an "opening statement." Id . at 32, 197 A.3d at 1106 -07 . In summary, we explained the term as "a statement by counsel made at the beginning of a trial, before the presentation of evidence, in which counsel usually provides the fact-finder with an outline of the case, the evidence that is to be presented, and the arguments that are to be made." Id. at 32-33 , 197 A.3d at 1107 . We emphasized there that "an opening statement is not itself evidence, as it is given prior to the presentation of evidence, and often includes a preview of the evidence that counsel expects to present during trial." Id. at 33 , 197 A.3d at 1107 . Previously, we have counseled that "[a]n opening statement should refer to facts that will be admissible in evidence." Terry v. State , 332 Md. 329 , 337, 631 A.2d 424 , 428 (1993).

Nonetheless, pursuant to our case law, a comment in opening may "open the door" to evidence offered by the opposing party that previously would have been irrelevant, but has become relevant. Id. ; see also Little v. Schneider , 434 Md. 150 , 161, 73 A.3d 1074 , 1080 (2013) ("the doctrine of 'opening the door' applies equally in opening statements, witness examination, and closing arguments."); Johnson v. State , 408 Md. 204 , 226, 969 A.2d 262 , 275 (2009) ("It is equally well settled that the State's case-in-chief may include 'rebuttal' evidence to which the defense has 'opened the door,' ... during opening statement[.]"). In Martin v. State , we held that a statement made in opening can trigger the "opening the door" doctrine. 364 Md. 692 , 708, 775 A.2d 385 , 394 (2001). However, we limited our examination to whether the responsive evidence was proportionate to defense counsel's opening remark.

Id. In that case, Dorian Martin ("Mr. Martin"), a former Baltimore City police officer, was charged with theft and misconduct in office. Id. at 695 , 775 A.2d at 386 . In opening statement, defense counsel told the jury that it was Mr. Martin's "life-long desire to become a police officer," that the police department was using Mr. Martin as a " 'sacrificial lamb' for the Hispanic community" and that the department " 'abandoned' him." Id. at 705 , 775 A.2d at 392 .

The trial judge allowed the State to introduce evidence that Mr. Martin consulted with an attorney after he was accused of robbery and that, immediately after the consultation, he resigned from the police force. Id. at 703 , 775 A.2d at 391 . According to the trial judge, that evidence was relevant for purposes of rebutting defense counsel's opening remarks. Id. at 705 , 775 A.2d at 392 .

On appeal from that ruling, we held that "[t]he State's use of [Mr. Martin's] consultation with an attorney to rebut defense counsel's 'abandonment' assertion was not a proportionate response." Id. at 708 , 775 A.2d at 394 . We noted that "[e]vidence of a criminal defendant's consultation with an attorney is highly prejudicial, as it is likely to give rise to the improper inference that a defendant in a criminal case is, or at least believes himself to be guilty[,]" and concluded that "[t]he danger of unfair prejudice presented by the introduction of this evidence substantially outweighed any probative value, and it should not have been admitted." Id. at 708-09 , 775 A.2d at 394 -95 . DISCUSSION In the present case, defense counsel, during her opening statement, presented a fact that triggered the opening the door analysis. Defense counsel asserted that Mr. Heath sought to be reunited with his wife and that he was at Ottobar to find clients for his tattoo business to make money to pay for her transportation to the United States.

As such, the trial court needed to decide whether the State could admit, as responsive evidence, a previously redacted portion of Mr. Heath's statement to the police. The State contended that Mr. Heath's "true" reason for going to Ottobar was reflected in his statement to the police, which was to sell drugs. We conclude that the trial court committed a legal error when it admitted the prosecutor's responsive, but legally irrelevant, evidence on a collateral issue. In addition, the trial court abused its discretion when it allowed the prosecutor to present evidence that was not a proportionate response to remarks made in defense counsel's opening statement.

Lastly, the trial court abused its discretion when it concluded that the probative value of the prosecutor's responsive evidence was not substantially outweighed by the danger of any unfair prejudice. First, Mr. Heath's intent to sell "white" at Ottobar was a collateral issue that should not have been injected into the case. It was immaterial to the issues in the case, namely Mr. Heath's culpability in the death of Mr. Malenski and the assault on Mr. Clay. The dispositive question is whether the evidence used by the State was relevant to a fact or matter that is material to the issue in the case.

See Pearson v. State , 182 Md. 1 , 14, 31 A.2d 624 , 629 (1943) ("Evidence of collateral facts ... should be excluded, for the reason that such evidence tends to divert the minds of the jury from the real point in issue, and may arouse their prejudices.). Here, Mr. Heath's intent to sell cocaine at Ottobar had nothing to do with the underlying criminal charges, and thus exceeded the limitations of the opening the door doctrine. Secondly, in permitting the State to respond to defense counsel's opening remark, the trial judge was limited to providing a "remedy [that was] proportionate to the malady." Terry , 332 Md. at 338 , 631 A.2d at 428 . In Terry , defense counsel told the jury in opening statement that the defendant entered a plea of not guilty to the charge of conspiracy to distribute cocaine and related charges because he was innocent.

Id. at 332 , 631 A.2d at 425 . The trial court permitted the State to respond to that statement by introducing evidence that the defendant had a previous conviction of possession of cocaine with intent to distribute, on the theory that the defendant may not have wanted to plead guilty because he faced "back up time" for violating his probation, and mandatory sentencing as a subsequent offender. Id. at 332-33 , 631 A.2d at 425 -26 . We explained that, in admitting evidence under the "open door" doctrine, "the remedy must be proportionate to the malady[,]" and held that evidence of the previous conviction should not have been admitted because the impact