State v. Jones

HOLLANDER, Judge. In this appeal brought by the State, we must decide whether the Circuit Court for Prince George’s County erred in granting post-conviction relief to Thomas Wayne Jones, appellee, pursuant to the Maryland Post Conviction Procedure Act ¹⁸⁶ (the “Act”), McLCode (1957, 1996 RepLVol., 2000 Supp.), Art. 27, §§ 645A-645J. 1 The circuit court’s ruling stemmed from Jones’s trial in December 1996 for the murders of Jamal Johnson and Gary Gulston in 1993, and numerous related offenses involving Michelle and Jeannette Gulston. 2 A jury in the Circuit Court for Prince George’s County convicted Jones of kidnaping and first degree felony murder of Gary Gulston, as well as robbery with a deadly weapon, robbery, and use of a handgun in the commission of a felony. As to Jeannette’s residence, Jones was found guilty of housebreaking. With regard to Michelle, he was convicted of robbery and robbery with a deadly weapon.

The jury did not reach a verdict against Jones as to Johnson’s murder, and those charges were subsequently nol prossed. On January 31, 1997, the trial court sentenced Jones to life without parole for Gulston’s murder, and imposed consecutive sentences of twenty years each for the handgun offense and the armed robbery of Michelle. The other convictions were merged for sentencing purposes. In an unreported opinion ¹⁸⁷ authored by Judge Harrell, we affirmed Jones’s convictions.

See Jones v. State, 119 Md.App. 817 (1998) (“Jones I ”). Jones did not seek certiorari. On November 12, 1998, Jones filed a Petition for Post Conviction Relief (the “Petition”) pursuant to the Act, claiming numerous errors that constituted ineffective assistance of trial counsel and appellate counsel, as well as trial court error. 3 A primary issue concerned the admission at trial of an inculpatory written statement that Derrick Smith provided to police, which included an incriminating declaration attributed to Don Lowell Gutrick. After a hearing held on May 20, 1999, the court granted Jones’s Petition on August 19, 1999, based on findings of ineffective assistance of trial and appellate counsel, as well as trial court error.

Accordingly, the court granted Jones a new trial and a belated appeal. Thereafter, the State filed an Application for Leave to Appeal, which was granted by Order dated April 12, 2000. On appeal, the State presents one issue for our consideration: Did the post conviction court err in granting Jones a new trial and a new appeal? Appellee subsequently moved to strike a portion of the State’s reply brief, claiming that the State belatedly raised an argument to support the admission of Gutrick’s statement.

We shall address the motion to strike, and the State’s response to it, in the course of our discussion. For the reasons set forth below, we shall neither affirm nor reverse the post-conviction court. Instead, we shall remand to the post-conviction court for further proceedings. FACTUAL BACKGROUND A. The Trial On July 16, 1993, sixteen-year-old Jamal Johnson and Gary Gulston, who was twenty-three years of age, were brutally ¹⁸⁸ murdered in Prince George’s County.

Johnson’s body was found by Prince George’s County Police Officer Etiene Jones, who responded at 1:54 p.m. to Michelle’s apartment in District Heights, where she lived with her cousin, Gary Gulston. Johnson’s body was on the floor of a bedroom, face down in a pool of blood, with a blanket nearby that contained bullet holes and powder burns. Ballistics analysis revealed that he had been shot in the back with a .25 caliber semiautomatic handgun, and in the head with a .45 caliber semiautomatic handgun. After speaking with Mi ‘¿lie, the police proceeded to the single family home of Jeannette, the mother of Gary Gulston, who resided in Forestville.

Gulston’s body was found in the basement. He suffered a fatal gunshot wound to the back of his head. Although the police observed that the front door to the residence was ajar, there was no sign of forced entry. A washtub in the basement was found to contain Gutrick’s fingerprint.

We shall continue our factual summary by setting forth the “Facts” as summarized by the Court in Jones I. We will then supplement those facts with information pertinent to this appeal. In Jones I, the Court said: FACTS 4 Michelle Gulston testified that on 16 July 1993 she was in her apartment at 6804 Alpine Street in District Heights, Maryland, with her son. On that day her cousin, Gary Gulston, who also lived in the apartment, received a page on his beeper. Ms. Gulston heard him respond in his return telephone call that he was on his way.

Mr. Gulston then left the apartment. Ms. Gulston was in her bedroom watching television with her son when she heard Mr. Gulston return eight or ten ¹⁸⁹ minutes later. Ms. Gulston overheard several people talking, then two men burst into her room yelling that it was a “stick-up.” Ms. Gulston testified that she did not see the men’s faces clearly because her face was in a pillow and their faces were covered with hoods. The men tied her hands together with a phone cord, and then asked her for money.

The men also asked questions about Mr. Gulston, including where he kept his money. She said that she did not know, and the men ransacked her room, taking keys and jewelry. Ms. Gulston heard other men in the living room asking Mr. Gulston questions about money and drugs. She heard Mr. Gulston say that there was money at his mother, Jeannette Gulston’s, house, and that he knew how to disable the alarm at her house.

The men took Mr. Gulston with them and left Ms. Gulston’s apartment. Before they left, the men put Jamal Johnson on the bed next to Ms. Gulston’s son. Two men remained in the apartment while the others took Mr. Gulston to his mother’s house. Fifteen to twenty minutes later, the men returned without Mr. Gulston.

Ms. Gulston, whose hands were still restrained by a phone cord, heard someone come into the bedroom, take Mr. Johnson into the living room, turn up the volume on the television, and fire what sounded like two gunshots. Ms. Gulston could not see who fired the shots or how many people were in the apartment because she was still restrained in the bedroom. After the men left the apartment Ms. Gulston freed herself and called police. After the incident, Mr. Gulston’s car, which had been parked in front of the apartment, was found one block away.

Ms. Gulston testified that the men had taken Mr. Gulston’s car keys and her house keys when they left to go to Jeannette Gulston’s house. In addition, a .25 caliber pistol belonging to Ms. Gulston was stolen. When officers responded to 6804 Alpine Street, they found Mr. Johnson’s body with bullet wounds to his back and to the back of his head. At trial, evidence showed that Mr. Johnson was killed by bullets from a .25 caliber pistol.

Officers also recovered .25 caliber bullets and shell casings, ¹⁹⁰ a scale, 179 grams of suspected crack cocaine, a shoe box containing plastic baggies and razor blades, a pager, and $2,500.00 cash from Ms. Gulston’s apartment. Officers checked Mr. Gulston’s car for fingerprints but did not recover any prints. Officers who responded to 6508 Cricket place, Jeannette Gulston’s house, discovered Mr. Gulston’s body in the basement. Mr. Gulston was lying on his stomach with a pillow over his head, concealing a gunshot wound to the head.

At trial, the State introduced evidence that the bullet recovered from Mr. Gulston’s body was fired from a .9mm pistol. Jeannette Gulston testified regarding the condition of her house. She was out of town at the time of the shooting and returned to find her house ransacked and her previously locked safe unlocked. The contents of the safe, including certificates of deposit, $10,000.00 in savings bonds, and approximately $4,000.00 in cash, were missing.

On 2 August 1993, at approximately 7:00 p.m., appellant was arrested after officers stopped the car in which he was a passenger. Appellant was acting strangely; one officer testified that appellant seemed “very hyper.” Officers took appellant to the police station and placed him in an interview room. Detective Kenneth O’Berry read appellant his rights and had appellant sign a waiver form. Appellant wrote on the form that he had used POP and weed (marijuana).

Shortly thereafter, Detective Brian Hickey called Detective O’Berry, who had been questioning appellant, out of the interview room and told him that his supervisor wanted to stop questioning appellant until he slept off the effects of the PCP. Detective O’Berry testified that appellant became loud and boisterous several times while in the interview room. Detective Andrew Rostich testified that he,was in the interview room next to appellant’s the night of 2 August 1993. Detective Rostich heard appellant causing several disturbances.

At one point, the detective removed all the chairs in appellant’s interview room because appellant had been throwing them around. Later, at approximately 2:15 a.m. on 3 August, Detective Rostich hear [sic] another ¹⁹¹ disturbance. He discovered appellant trying to climb into the ceiling panels from the table in the interview room. The detective pulled appellant down from the table.

As he was falling, appellant hit his head on the table, thereby injuring his left eye. Detective Hickey testified that at 4:00 a.m. on 3 August 1993, he returned to the interview room with some food for appellant. Appellant stated that he wanted to sleep. Detective Hickey noticed that appellant’s left eye was red and swollen.

Although appellant refused medical treatment the detective took him to the hospital. When appellant returned to the police station from the hospital at approximately 6:45 a.m., Detective Hickey stated that appellant appeared calm. Detective Richard Delabrer testified that at 7:30 a.m. he entered the interview room to talk to appellant. Detective Delabrer stated that he knew appellant from past cases and had a good rapport with him.

The detective read appellant his rights. Appellant indicated that he understood his rights and was not under the influence of drugs or alcohol. Appellant gave a statement implicating himself in the murders of Gary Gulston and Jamal Johnson and the robberies of Michelle Gulston and Jeannette Gulston. Detective Delabrer testified that appellant wrote a statement, then the detective asked appellant a series of questions, and had appellant "write down his answers.

Appellant reviewed the statement and signed it. The statement was completed by approximately 2:00 p.m. on 3 August 1993. Derrick Smith, a convicted co-defendant in the case, testified that he made a statement to police regarding the night of 16 July 1993. Mr. Smith, however, denied participation in the murders and testified that the police coerced him into giving a statement implicating himself and appellant.

Nevertheless, Mr. Smith’s statement was admitted into evidence. Jones I, slip op. at 2-6 (footnotes omitted). On the evening of August 2, 1993, Jones was arrested in connection with the murders. At the time of his arrest, Jones ¹⁹² was apparently under the influence of PCP, and was later taken to an area hospital for an eye injury.

Several hours after Jones’s arrest, when the effects of the PCP had evidently worn off, he gave a written statement to the police. Prior to trial, Jones unsuccessfully moved to suppress that statement. In connection with the suppression motion, Jones was represented by William H. Murphy, Jr. and Joseph Niland, the Public Defender for Prince George’s County. At trial, Jones was represented only by Niland.

Detective Richard Delabrer testified at Jones’s trial concerning Jones’s statement to police, which was introduced in evidence. The statement provided, in part: A few weeks ago I was over this girl named T’s house getting high talking when all of a sudden don [sic] [Gutrick] called me back to the bedroom and asked me was I trying to get some quick money so I said yes then he told me that we were going to rob some dude named Gary [Gulston. S]o me, Don [Gutrick], Jason [Pinkney] and Derrick [Smith] waited until the next morning and went to hill top apartments and parked[.][s]o me and Don went in some woods waiting for [G]ary while Jason and Derrick was in the car, and [G]ary pulled up and went in the house[. S]o me and Don went to get Jason and Derrick but by [the] time we got back to his building he was leaving so we waited in his building until he came back and when he came back we took him into the apartment and laid everyone down and asked wheres [sic] the money and drugs and [G]ary told us it was over his mothers [sic] house but he said he would have to take us there because there was a[sic] alarm on the door [s]o me and Don took him there and found a safe and four thousand[.

S]o Don kept on saying this aint [sic] all the money and [G]ary [kept] on saying its [sic] some more but I dont [sic] know where its [sic] at because my brother hid it and Don thought he was lying and went and got a pillow and we is about to kill you and I told Don no let’s take him back and call his brother and Don said no give me the gun[.] I’ll do it[J Just put the pillow over his head[. S]o I did it and Don shot him once in the head[. S]o we left and went back ¹⁹³ to hilltop and I told Don 111 [sic] get the car ready while he go get them and when he upstairs I heard two shots and they came running out to the car and we went over to Jasons [sic] house in Seat Pleasant and split the money 4 ways and Derrick had a 25 that he got. Jones also said that Gutrick had a .45 caliber weapon, and Smith found a .25 caliber gun in the apartment.

Jones added that he wore a hood over his face while in the apartment. Moreover, he denied that he participated in the shooting of Johnson. By the time of Jones’s trial, Derrick Smith had already been convicted. Accordingly, the State called Smith as a witness at Jones’s trial.

The following colloquy at the outset of Smith’s testimony is pertinent: [PROSECUTOR]: Mr. Smith, where are you presently residing? [SMITH]: Prison. [PROSECUTOR]: I’m sorry. [SMITH]: Prison. [PROSECUTOR]: Department of Corrections? [SMITH]: Yeah. [PROSECUTOR]: And you have previously been convicted in this case; is that correct, Mr. Smith? [SMITH]: Yeah. When the State questioned Smith about the events in issue, he unexpectedly denied knowledge of or participation in the murders, to the surprise of both the prosecutor and Jones’s defense counsel. Consequently, the prosecutor referred Smith to the written statement that he provided to Detective Rostich after his arrest, which was eventually admitted in evidence. We shall discuss, infra, the circumstances culminating in its admission.

According to Smith’s statement, the robbery had been planned the day before it occurred, and the group arrived at Gulston’s apartment in appellant’s car. Smith recounted that Gutrick and appellant were the ones who first approached ¹⁹⁴ Gulston outside the apartment. Further, Smith admitted in his statement that he shot Johnson, because “he seen everybody [sic] face.” Additionally, Smith wrote, in part: Me and Don [Gutriek], T.J. [i.e., appellant], and Jason meet [sic] over Tee’s house and then Don called T.J. in the back room. * * * * 5 So we went to Gary [sic] house and robbed him. We was looking for some drugs and money.

But there was no money there so Don and T.J. left the apartment with Gary and they did not come back with him. So me and Jason was waiting for them to come back. So went [sic] they came back Don came up stairs and said are you ready to go and we said yes, but before we left we asked him did they get anything and he said yes so we rolled. And then we went over Jason’s house to count the money.

We counted about 5000 dollar [sic] and we all got about 1100 dollars a peace [sic]. The following portion of Smith’s statement is central to this appeal: [DETECTIVE ROSITCH]: Did Don [Gutriek] or T.J. [i.e., appellant] say anything when they came back [to Michelle’s residence]? [SMITH]: When Don came back upstairs Jason asked him where the other person was at and he said we [i.e. Gutriek and appellant] killed him [i.e., Gulston]. (Emphasis added).

After Jones’s trial, he filed an appeal to this Court, and was represented by Leonard L. Long, Jr. Long raised three issues: the denial of Jones’s motion to suppress, the sufficiency of evidence, and the adequacy of the State’s Notice of Intention to Seek Life Without Parole. We affirmed in Jones I. As to the suppression motion, Long raised several grounds to support his claim that the trial court erred in denying the motion. Following a thorough consideration of the contentions, the Court concluded that the “trial court properly ¹⁹⁵ denied” the suppression motion. Moreover, in finding the evidence sufficient, we recognized the importance of Smith’s statement, stating: Although Michelle Gulston was not able to identify the robbers, and no fingerprints were recovered from the crime scenes, appellant’s statement and Mr. Smith’s statement corroborate Ms. Gulston’s testimony and provide sufficient evidence for a jury to find beyond a reasonable doubt that appellant kidnapped Gary Gulston, robbed Michelle Gulston, and broke into Jeannette Gulston’s house.

Furthermore, as to appellant’s use of a handgun, in his statement he admits that he had a gun, which he handed to Don so that Don could kill Gary Gulston while appellant held a pillow over his head. Finally, as to the question of whether Gary Gulston was killed while in the process of committing a felony, we find ample evidence that Gary Gulston was killed during the commission of his kidnapping and robbery with a deadly weapon. Appellant claims that because Don killed Mr. Gulston after the robbery, it was an independent and separate act. Appellant’s argument has no merit.

Finally, we note that although a jury could find beyond a reasonable doubt that appellant was a principal offender in the robberies and murder, appellant’s convictions could also stem from his participation as an accomplice. Jones I, slip op. at 24-25 (emphasis added). B. Post-Conviction Proceedings On November 12, 1998, Jones filed the underlying Petition, which he supplemented on May 7, 1999, asserting numerous grounds to support his claims of ineffective assistance of trial counsel, ineffective assistance of appellate counsel, and prejudicial errors by the trial court. On May 20, 1999, the court held an evidentiary hearing, at which Jones was represented by Fred Warren Bennett.

Murphy, Niland, and Long, Jones’s prior attorneys, all testified. ¹⁹⁶ In questioning Niland, Bennett focused on various portions of Smith’s trial testimony. The following colloquy is relevant: [BENNETT]: Is there any tactic or strategy that you can relate to the Court at this time as to why you would not have objected to a prior conviction of a severed co-defendant for the same crime for which the defendant was on trial? [NILAND]: Well, I think at the time I thought that this man, Smith, admitting that he was convicted of both of these homicides tended to reenforce my theory that alienated the defendant from these homicides or alienated the defendant from participation in these homicides and so I didn’t think it was harmful. I thought it was probably — I think my thinking at the time — well, there were a number of things caught up in all of this. Smith surprised me by not testifying.

I had been informed before this trial started ■that both Smith and Gulston [sic] were going to testify against the defendant. [BENNETT]: Derrick Smith and Don Gulston? 6 [NILAND]: Yes. [BENNETT]: All right. [NILAND]: And of course I was prepared to — I assume they were going to testify in the most unfavorable possible ways that I could imagine. [BENNETT]: Now, let me stop you there. Such as implicating the defendant? [NILAND]: Yeah. I was there and saw the defendant and saw the defendant participate in killing this guy. [BENNETT]: Now, you said a minute or so ago one of the reasons you may not have objected is the fact that he admitted, that is, Derrick Smith for being convicted of the same crime that the defendant was on trial might give some distance between the defendant and Derrick Smith, right? ¹⁹⁷ [NILAND]: Yes, and conclusions you might reach about who really were the killers in this case. Bennett then inquired about Smith’s written statement to police, and Niland’s failure to object to the hearsay within hearsay portion of Smith’s statement, in which Smith quoted Gutrick as saying “we killed him.” The following testimony is relevant: [BENNETT]: All right.

Now, so far we’ve identified from the transcript that your objection was based on you did not want a written statement to go in front of the jury, correct? That’s as far as we got so far? [NILAND]: I think I objected because I didn’t want any of the statement to go in front of the jury. I don’t know that I ever was given an opportunity to go into whether the statement conformed to admissibility based on the rule. I don’t even know if he let me get into that.

The judge — I started on this statement. I did say what you said which is if you’re going to let any of this in it should be testimonial. It shouldn’t be the document itself. [NILAND]: You’re characterizing it by saying that my objection was limited to me — to the written part not coming in as opposed to me indicating that it’s OK to leave, to have the — I think that was a secondary objection I made. I think I objected to the statement coming in.

And then when I saw the writing on the wall, that is that the statement was coming in, I tried to get my half a yard instead of my whole yard, and I asked for him not to let the written part in. So I don’t think, I don’t think that’s wrong. That’s all I did. Now, you’re right.

In retrospect you have shown me some things in the statement that I could have specifically objected to— [BENNETT]: And that’s where I’m going to next. [NILAND]: — and I didn’t. But I don’t think that means I didn’t object to this whole statement coming. [BENNETT]: I agree that you clearly objected to the statement coming in. You’re saying that was a fall back. ¹⁹⁸ Your first objection was the statement shouldn’t come in at all, but if it does, it should be in a Q and A form and not in the document itself; is that a fair statement? [NILAND]: Yes, that’s a fair statement, yes. (Emphasis added).

The following testimony is also pertinent: [BENNETT]: Would you not agree that that statement was a direct out-of-court statement implicating the defendant in the crime for which he was ultimately convicted? [NILAND]: Yes, it was. [BENNETT]: Now, you were aware, were you not, of the Nance case at the time of this trial, right? [NILAND]: Yes. [BENNETT]: And were you aware in footnote nine in the Nance decision where it says “assuming that a prior inconsistent statement can come in, you have a separate objection to a line-by-line statement to portions of the prior inconsistent statements that are hearsay.” [NILAND]: To tell you — I can only say that I had probably by that time read Nance a dozen times, reviewed it, given seminars on it, discussed it, considered various ramifications of Nance because it was a problem in the defense case at the time. Now, it’s maybe a problem in the State’s case. But the — I guess the bottom line answer is yes. I think that the case indicates that if there is extraneous hearsay that the whole thing is based upon hearsay, the whole statement is hearsay.

But if there is extraneous or as you say second-hand hearsay or double hearsay or triple hearsay, then that’s objectionable because it loses the reliability of being subject to cross[-]examination of the person who it’s being attributed to on the part of the defendant. So yes — and that would fall — this would fall clearly into that category. No question about it. [BENNETT]: Now, you’ve testified a few minutes earlier that your goal is to keep this out generally. You objected.

First, don’t let it in under Nance and don’t let in the written ¹⁹⁹ statement. So your goal at trial was to keep the statement out? [NILAND]: My goal — when it came up at trial, this wasn’t part of my pretrial preparation because I didn’t think it would happen. But once it happened my goal was to keep it out if I could. [BENNETT]: That would include a goal of keeping out a portion of the statement that would be multiple hearsay had you recognized it, correct? [NILAND]: I would think so, especially this piece of hearsay. [BENNETT]: So is it fair to say that it was an oversight on your part? [BENNETT]: It was an oversight on your part in not recognizing the last question on page six to be multiple hearsay, i.e., [fit’s multiple hearsay, Your Honor. It doesn’t qualify even under— [NILAND]: I can’t attribute it to anything other than an oversight on my part that I wouldn’t have objected to that on that basis. [BENNETT]: Is it also accurate to say evidence against the defendant at trial consisted generally — that is, the harmful evidence at trial of his statement and the statement of Derrick Smith.

They had no fingerprints, did they? [NILAND]: No, I don’t think so. I don’t think there was any kind of physical evidence that tied the defendant to either one of the homicides that I can recall, not that I can recall. So yeah, his statement. [BENNETT]: And the [Smith] statement? [NILAND]: And this statement — frankly, overall I didn’t consider this statement as particularly harmful. I mean, I guess I was looking at it in its totality at the time.

(Emphasis added). Appellee’s attorney also inquired as to why Niland did not refer the trial court to the Court of Appeals’s decision in State ²⁰⁰ v. Matusky, 343 Md. 467 , 682 A.2d 694 (1996). The following testimony is relevant: [BENNETT]: ... From what we’ve gone over so far, you did not object to the document, that is, the physical document or a Q and A on the basis that it was hearsay since it included portions that were not contrary to the penal interests of Derrick Smith, didn’t you?

That was based on the Matusky case? [NILAND]: Right. I didn’t raise that, no. [NILAND]: I’m certain I was aware of the Matusky case by the time this case came to trial. Now, did I consciously analyze this statement in light of the Matusky opinion? I can’t say I did, but I might have considered it.

But I don’t have any recollection. [BENNETT]: Now, would there be any trial tactic or strategy involved not to object based on a recent Court of Appeals case [.Matusky ] that would be favorable to your client that you’re aware of since you were trying to keep it out? [NILAND]: Well, I think you would have to ask me about any particular thing that’s in here before I can answer that. With respect to the ineffectiveness of appellate counsel, the question of hearsay within hearsay was also examined. In response to the State’s inquiry to Long about his preparation for the appeal, Long said: “I read the transcript, the suppression hearing transcripts as well as the trial transcripts, researched and reviewed relevant case law, visited Mr. Jones, had a conversation with Mr. Jones and prepared the appeal.” Long also stated that, with regard to Smith’s statement, he “had no basis to raise [the issue of Gutrick’s assertion] as an issue on appeal.” On cross-examination, however, Long indicated that he did not recall whether he ever reviewed Smith’s statement, and he conceded that he did not speak with Niland before preparing the appeal. The following testimony is noteworthy with regard to Bennett’s inquiry as to why Long ²⁰¹ failed to raise on appeal the issue of Gutrick’s assertion, which was contained within Smith’s statement. [BENNETT]: And ...

I take it from your not mentioning it, you did not review the State exhibits that were introduced into evidence at trial, did you? [LONG]: I don’t recall whether I did or I didn’t____ * * * [BENNETT]: To the extent that evidence was introduced that wasn’t read into the record verbatim in a question and answer form in the statement, you would have to see — in order to see the contents of that exhibit, you would have to review the exhibit; is that right, Mr. Long? [LONG]: Yes. [BENNETT]: Now, I’m showing you Defendant’s Exhibit No. 6 for purposes of this hearing. This is a statement of Derrick Smith. This was introduced into evidence as State’s Exhibit 50 at trial. You indicated on direct that you did not raise as an issue on appeal anything in regard to the statement of Derrick Smith; is that correct? [LONG]: That’s correct. [BENNETT]: You said you didn’t do so because after review of the motions hearing and the trial transcript you found that there was no merit to that issue, correct? [LONG]: Yes, in my understanding of the law. [BENNETT]: Your understanding of the law.

How could you make a determination that there was no merit to the question of the admissibility into evidence as a physical exhibit, the statement in toto without having reviewed the substance of the statement? [LONG]: I didn’t say I didn’t review it. I said I don’t recall reviewing it. [BENNETT]: But on direct you were asked what you did and it did not include reviewing the exhibits and talking to the trial attorney? [LONG]: Correct. ²⁰² [BENNETT]: And the best you said is you don’t recall; is that correct? [LONG]: Correct. [BENNETT]: Sir, in reaching that determination that the issue had no merit, that is, the question of the admissibility of the Derrick Smith statement, are you basing that on a Maryland evidence rule or case law or both? [LONG]: Maryland evidence rule. [BENNETT]: Is that the rule dealing with the admissibility of prior inconsistent statements that is codified after the Nance case, Nance versus State. [LONG]: Yes. [BENNETT]: Sir, ... [a]re you aware in Nance that even if [a] portion of the statement came in a portion may not? [LONG]: Yes. And I was satisfied that the portion that came in did not contain any opinions or conclusions of the declarant. [BENNETT]: Sir, the redacted version according to the record which has been introduced never took out that portion [of Smith’s statement containing Gutrick’s assertion.] That statement with that Q and A that I just read to you came in front of the jury. Are you aware of that? [LONG]: No, I’m not. [BENNETT]: Had you been aware of it, that would have been a basis to raise on an appeal, wasn’t it?

That is, the statement contained inadmissable hearsay and, therefore, the Court’s ruling in its entirety was not correct? [LONG]: I’m not prepared to say that: [BENNETT]: Hypothetically, had you been aware of that statement and the fact that it directly referred to him by a person who wasn’t on the stand, i.e. Don, and aware of footnote nine in Nance, you would have raised that on appeal, wouldn’t you? ²⁰³ [LONG]: I can’t say that I would and I can’t say that I would not. [BENNETT]: And the reason you can’t say that, is it not fair to say, sir, is because you didn’t review the statement, you didn’t review the exhibit and you didn’t talk to Joe Niland? [LONG]: Well, I didn’t review [Smith’s] statement. [BENNETT]: Didn’t review the statement? [LONG]: I don’t have any recollection of reviewing the statement. [BENNETT]: Wouldn’t you say, sir, that in fairness to Mr. Jones as part of a duty as an appellate attorney, that if a statement comes in that implicates your client, that would be something to see if you can raise that on appeal? [LONG]: My own understanding of when it came in is that it did not implicate my client. (Emphasis added). Long conceded that his failure to raise the hearsay within hearsay issue amounted to a “possible” oversight.

On August 19, 1999, the post-conviction court issued a written opinion and order, amended on August 25, 1999. Relying on Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), the court granted Jones’s Petition, based on ineffective assistance of trial and appellate counsel, as well as error by the trial court. With regard to ineffective assistance of counsel, the court found various errors that amounted to deficient performance, and concluded that the errors “did result in prejudice to the defendant.” The post-conviction court also found prejudicial error by the trial judge in failing to redact Gutrick’s hearsay within hearsay assertion from Smith’s statement. Although Jones asserted numerous errors with respect to the performance of his trial counsel, the court below essentially found Niland ineffective for two reasons.

First, the court found that Niland failed to object to the evidence of Smith’s conviction arising from the same case. Second, the court found that “defense counsel probably should have objected” to ²⁰⁴ the admission of Smith’s statement to police, in which Smith claimed that Gutrick said, “we killed him.” Elsewhere in its opinion, the court said that Niland “did object to [Smith’s] entire statement,” but “did not specifically object” to Gutrick’s comment. The post-conviction court also determined that the “cumulative” effect of trial counsel’s errors amounted to ineffective assistance, stating: With the benefit of hindsight, the Court agrees with [Jones] that certain mistakes were made ... Counsel’s trial performance, although generally excellent, did fall below a standard of reasonableness when he failed to object to the admission of the multiple hearsay statement.

This, when combined with the cumulative effects of the other, more minor mistakes did result in prejudice to the defendant. With respect to ineffective assistance of appellate counsel, the court reasoned: Petitioner argues that there are three things that an appellate attorney should do, as a matter of course: 1) review the transcripts, 2) review the trial exhibits, and 3) confer with tr[ia]l counsel---- Appellate counsel ... testified that after reading the transcripts, he did not see a basis for raising the issue of the inadmissibility of the redacted statement of Derrick Smith. Appellate counsel admitted that he did not review the exhibits, and did not speak to trial counsel---- The Court agrees that appellate counsel was deficient, said deficiency excuses Petitioner’s failure to raise allegations on direct appeal, and that, at a minimum, Petitioner is entitled to a new appeal. We shall include additional facts in our discussion.

DISCUSSION I. The post-conviction court granted relief under the Act based on its finding that Jones received ineffective assistance from his trial and appellate attorneys. The right to effective assistance of counsel in a criminal trial is guaranteed by the ²⁰⁵ Sixth Amendment to the United States Constitution, made applicable to the states through the Due Process Clause of the Fourteenth Amendment. See Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984); McMann v. Richardson, 397 U.S. 759 , 771 n. 14, 90 S.Ct. 1441 , 25 L.Ed.2d 763 (1970). Strickland is regarded as “[t]he fountainhead” in post-conviction claims of ineffective assistance of counsel.

State v. Gross, 134 Md.App. 528, 550 , 760 A.2d 725 (2000), cert. granted, 362 Md. 623 , 766 A.2d 147 (2001). The “benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686 , 104 S.Ct. 2052 . In Strickland, the Supreme Court established the applicable standard to determine whether the legal representation afforded to a defendant comports with the requirements of the Sixth Amendment. See Williams v. Taylor, 529 U.S. 362, 389-394 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000).

To assess the effectiveness of counsel’s representation under the Sixth Amendment, the Strickland Court created a two-pronged test, consisting of a “performance component” and a “prejudice component.” Id. at 687 , 104 S.Ct. 2052 ; see Lockhart v. Fretwell, 506 U.S. 364 , 113 S.Ct. 838 , 122 L.Ed.2d 180 (1993); Nix v. Whiteside, 475 U.S. 157 , 106 S.Ct. 988 , 89 L.Ed.2d 123 (1986). A reviewing court “need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” Strickland, 466 U.S. at 687 , 104 S.Ct. 2052 . Maryland has consistently applied the Strickland test in deciding whether counsel has rendered constitutionally ineffective assistance. See, e.g., Redman v. State, 363 Md. 298, 310 , 768 A.2d 656 (2001); Wiggins v. State, 352 Md. 580, 602-05 , 724 A.2d 1 , cert. denied, 528 U.S. 832 , 120 S.Ct. 90 , 145 L.Ed.2d 76 (1999); Oken v. State, 343 Md. 256, 283 , 681 A.2d 30 (1996), cert. denied, 519 U.S. 1079 , 117 S.Ct. 742 , 136 ²⁰⁶ L.Ed.2d 681 (1997); Gilliam v. State, 331 Md. 651, 665-66 , 629 A.2d 685 (1993), cert. denied, 510 U.S. 1077 , 114 S.Ct. 891 , 127 L.Ed.2d 84 (1994); Williams v. State, 326 Md. 367, 373 , 605 A.2d 103 (1992); State v. Thomas, 325 Md. 160, 170-73 , 599 A.2d 1171 (1992), cert. denied, 508 U.S. 917 , 113 S.Ct. 2359 , 124 L.Ed.2d 266 (1993).

Under Strickland , we must focus on whether counsel’s errors were so “serious as to deprive [Jones] of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687 , 104 S.Ct. 2052 ; see Williams, 529 U.S. at 393 n. 17, 120 S.Ct. 1495 ; Lockhart, 506 U.S. at 369 , 113 S.Ct. 838 ; Oken, 343 Md. at 284 , 681 A.2d 30 ; Bowers v. State, 320 Md. 416, 427 (1990). Thus, the defendant must demonstrate that defense counsel’s errors were of such a magnitude that his lawyer was “not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687 , 104 S.Ct. 2052 . To establish that trial counsel’s representation “was so deficient as to undermine the adversarial process,” Gross, 134 Md.App. at 551 , 760 A.2d 725 , a defendant must show that: (1) under the circumstances, counsel’s acts resulted from unreasonable professional judgment, meaning that “counsel’s representation fell below an objective standard of reasonableness,” and (2) that the defendant was prejudiced, because “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694 , 104 S.Ct. 2052 ; see Williams, 529 U.S. at 391 ; Lockhart, 506 U.S. at 369 , 113 S.Ct. 838 ; Perry v. State, 357 Md. 37, 80 , 741 A.2d 1162 (1999). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694 , 104 S.Ct. 2052 ; see Kimmelman v. Morrison, 477 U.S. 365 , 106 S.Ct. 2574 , 91 L.Ed.2d 305 (1986). Nevertheless, “[t]he object of an ineffectiveness claim is not to grade counsel’s performance.” Strickland, 466 U.S. at 687 , 104 S.Ct. 2052 .

To be sure, the Supreme Court has recognized that “[t]here are countless ways to provide effective assistance in any given case,” and “[e]ven the best ²⁰⁷ criminal defense attorneys would not defend a particular client in the same way.” Strickland, 466 U.S. at 689 , 104 S.Ct. 2052 . Thus, the review “must be highly deferential,” id. at 689 , 104 S.Ct. 2052 , and “the defendant must show that counsel’s representation fell below an objective standard of reasonableness,” as measured by “prevailing professional norms.” Id. at 688 , 104 S.Ct. 2052 . In that calculation, a defendant “must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ” Strickland, 466 U.S. at 689 , 104 S.Ct. 2052 (citation omitted). Moreover, “every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. at 689 , 104 S.Ct. 2052 ; see Cirincione v. State, 119 Md.App. 471, 492 , 705 A.2d 96 , cert. denied, 350 Md. 275 , 711 A.2d 868 (1998).

Accordingly, under Strickland , a reviewing court must consider defense counsel’s performance “as of the time of counsel’s conduct.” 466 U.S. at 690 , 104 S.Ct. 2052 . As we noted, defense counsel’s deficient performance is not enough to entitle a defendant to relief. Strickland also requires the defendant to establish actual prejudice caused by the deficient performance. Strickland, 466 U.S. at 692 , 104 S.Ct. 2052 ; Redman, 363 Md. at 309-10 , 768 A.2d 656 .

In other words, even if counsel made “a professionally unreasonable” error, Strickland, 466 U.S. at 691 , 104 S.Ct. 2052 , this alone does “not warrant setting aside the judgment of a criminal proceeding [unless] the error had [an] effect on the judgment.” Id. Moreover, prejudice is rarely presumed. Ordinarily, the defendant must prove that actual prejudice resulted from counsel’s deficient performance. Redman, 363 Md. at 311-12 , 768 A.2d 656 ; see United States v. Cronic, 466 U.S. 648, 662 , 104 S.Ct. 2039 , 80 L.Ed.2d 657 (1984).

To establish the requisite degree of prejudice in Maryland, the defendant must demonstrate “a substantial possibility that, but for counsel’s unprofessional errors, the ²⁰⁸ result of the proceeding would have been different.” 7 Strickland, 466 U.S. at 694 , 104 S.Ct. 2052 . But, “a defendant need not show that counsel’s deficient conduct more likely than not altered the outcome in the case.” Id. at 693 , 104 S.Ct. 2052 . Nor must “the prejudicial effect” satisfy “a preponderance of the evidence standard.” Williams, 326 Md. at 375 , 605 A.2d 103 . As we said in State v. Purvey, 129 Md.App. 1, 10 , 740 A.2d 54 (1999), the focus is not merely on the effect of error on the “outcome.” Rather, a “‘proper analysis of prejudice’” includes consideration of “ ‘whether the result ... was fundamentally unfair or unreliable.’ ” (Citations omitted).

A defendant claiming ineffective assistance of appellate counsel is also bound by the Strickland standard. Smith v. Robbins, 528 U.S. 259, 285 , 120 S.Ct. 746 , 145 L.Ed.2d 756 (2000); Gross, 134 Md.App. at 556 , 760 A.2d 725 . Nevertheless, as this Court observed in Gross , “[although the basic principles enunciated by Strickland remain the same, whether applied to a trial performance or an appellate performance, the juridical events to which those principles apply obviously differ somewhat depending on the operational level being scrutinized.” Id. at 556, 760 A.2d 725 . For example, in Jones v. Barnes, 463 U.S. 745 , 103 S.Ct. 3308 , 77 L.Ed.2d 987 (1983), the Supreme Court emphasized “the importance of having the appellate advocate examine the record with a view to selecting the most promising issues for review.” Id. at 752 , 103 S.Ct. 3308 .

Similarly, in Smith v. Murray, 477 U.S. 527 , 106 S.Ct. 2661 , 91 L.Ed.2d 434 (1986), the Supreme Court underscored as “the hallmark of effective appellate advocacy” the role of appellate counsel in “ ‘winnowing out weaker arguments on appeal and focusing on’ those more likely to prevail____” Id. at 536 , 106 S.Ct. 2661 (quoting Barnes, 463 U.S. at 751-52 , 103 S.Ct. 3308 ). ²⁰⁹ The standard of review of the lower court’s determinations regarding issues of effective assistance of counsel “is a mixed question of law and fact----” Strickland, 466 U.S. at 698 , 104 S.Ct. 2052 ; see Gross, 134 Md.App. at 559-60 , 760 A.2d 725 . We “will not disturb the factual findings of the post-conviction court unless they are clearly erroneous.” Wilson v. State, 363 Md. 333, 348 , 768 A.2d 675 (2001). But, a reviewing court must make an independent analysis to determine the “ultimate mixed question of law and fact, namely, was there a violation of a constitutional right as claimed.” Harris v. State, 303 Md. 685, 699 , 496 A.2d 1074 (1985). In other words, the appellate court must exercise its own independent judgment as to the reasonableness of counsel’s conduct and the prejudice, if any.

Oken, 343 Md. at 285 , 681 A.2d 30 . As we said in State v. Purvey, 129 Md.App. 1, 10 , 740 A.2d 54 (1999), cert. denied, 357 Md. 483 , 745 A.2d 437 (2000): “Within the Strickland framework, we will evaluate anew the findings of the lower court as to the reasonableness of counsel’s conduct and the prejudice suffered.... As a question of whether a constitutional right has been violated, we make our own independent analysis by reviewing the law and applying it to the facts of the case.” See Cirincione, 119 Md.App. at 485 , 705 A.2d 96 (stating that “we will defer to the post-conviction court’s findings of historical fact, absent clear error,” but “we [will] make our own, independent analysis of the appellant’s claim.”).

II

The post-conviction court found that trial counsel was ineffective because he failed to object to damaging evidence of Smith’s conviction in the same underlying case. The following colloquy is relevant: [PROSECUTOR]: Mr. Smith, where are you presently residing? [SMITH]: Prison. ²¹⁰ [PROSECUTOR]: And you have previously been convicted in this case; is that correct, Mr. Smith? [SMITH]: Yeah. In Clemmons v. State, 352 Md. 49, 55 , 720 A.2d 1170 (1998), the Court of Appeals said that, ordinarily, “the conviction or guilty plea of a co-perpetrator may not be used as substantive evidence of another’s guilt.” Although there are exceptions to the general rule, these have been “narrowly confined to situations where the evidence has a special relevance presented by the circumstances ----” Id. at 56 , 720 A.2d 1170 . Subsequently, in Casey v. State, 124 Md.App. 331 , 722 A.2d 385 (1999), we determined that the admission of a co-conspirator’s guilty plea constituted reversible error; the “State is not entitled to present evidence of an alleged co-conspirator’s guilty plea.” Id. at 341 , 722 A.2d 385 .

This is because such evidence might be misused by a jury and could contribute “to the rendition of the guilty verdict.” Carr v. State, 50 Md.App. 209, 211 , 437 A.2d 238 (1981). Relying on Casey , the court below found that “the State improperly offered the fact of [Smith’s] conviction, and that it was not harmless error. Defense counsel should have objected.” The State disagrees, contending that Niland’s failure to object constituted reasonable trial strategy, rather than a constitutionally defective performance. We agree with the State.

Although the State elicited that Smith was convicted in the same underlying case for which Jones was on trial, Smith did not offer direct testimony implicating Jones. Additionally, although Smith’s statement to police was admitted in evidence after he unexpectedly recanted, Smith insisted in his testimony that the police fabricated portions of the statement and that he lied as to other portions. In any event, Smith’s guilt did not necessarily mean that appellant was also one of the murderers. It is also noteworthy that, at trial, the defense conceded that Jones was involved in the robbery of Gulston, but denied that ²¹¹ he was a participant in either murder.

In his opening statement to the jury, Jones’s attorney argued: [B]ut the involvement of Thomas Jones in this robbery ceased before any killing took place in this case totally unconnected to the carrying out of force that was exerted during the robbery by Mr. Gutrick. And in the case of Mr. Jamal Johnson, Thomas Jones was not even present when Mr. Johnson was killed. Further, defense counsel asserted to the jury: “[Y]ou may well find him guilty of some offenses in this case including robbery or possibly kidnapping, but you cannot find him guilty of either of these murders.” Similarly, in closing, Jones’s lawyer argued that the robbery of Gulston was over before the killing occurred, Gutrick killed both men, and “Thomas Jones did not kill anybody in this case.” In his post-conviction testimony, Niland was unwavering that he had evaluated the evidence of Smith’s conviction and considered it helpful to his effort to concede involvement in the robbery, but to separate Jones from the two homicides. As Niland stated, his strategy was to “distance him, Thomas Jones, as much as I could from these other hoodlums.” At the hearing, Niland explained his strategy: Well, I think at the time I thought that this man, Smith, admitting that he was convicted of both of these homicides tended to reenforce my theory that alienated the defendant from these homicides or alienated the defendant from participation in these homicides and so I didn’t think it was harmful.

We are satisfied that Niland’s performance represented a reasonable trial strategy. Based on defense counsel’s strategy, appellant was not tainted by Smith’s conviction, because appellant admitted some degree of culpability, but contended that he was not involved in the murders. Therefore, in this respect, defense counsel’s representation was not constitutionally deficient. ²¹² III. A. Jones complained to the post-conviction court that Niland’s performance was deficient because he did not object to the admission of Gutrick’s incriminating hearsay statement (“we killed him”), contained within the written hearsay statement of Smith.

He argued that Gutrick’s remark constituted inadmissible hearsay within hearsay. The post-conviction court found that Niland “probably should have objected” to the statement. The court also said that Niland had objected to “the entire statement,” but did not “specifically object to the above statement.” Further, it determined that Smith’s statement contained “multiple hearsay,” and that trial counsel’s performance “did fall below a standard of reasonableness when he failed to object to the admission of the multiple hearsay statement.” The State maintains that Niland did, in fact, object to the admission of Smith’s entire written statement, and therefore the post-conviction court was clearly erroneous in finding to the contrary. According to the State, if Niland objected, his performance was not deficient. 8 As to the merits, the State seems to contend that, even if Niland failed to object, he was not ineffective, because Smith’s entire statement was admissible as a prior inconsistent statement under the rationale of Nance v. State, 331 Md. 549 , 629 A.2d 633 (1993), and Md. ²¹³ Rule 5-802.1(a). 9 Additionally, in the State’s reply brief, it asserts for the first time that Gutrick’s statement was admissible under the co-conspirator exception to the hearsay rule, codified in Md. Rule 5-803(a).

That rule provides that a “statement by a co-conspirator of the party during the course and in furtherance of the conspiracy” is not excluded by the rule against hearsay. We begin by exploring the threshold question of whether Niland objected to the admission of Gutrick’s comment, contained within Smith’s statement. Because of the State’s contention that Niland objected, we must review in detail the events that culminated in the admission of Smith’s written statement. As we noted earlier, the prosecutor first questioned Smith about his statement (State’s Exhibit 50) only after Smith surprised both the State and the defense by denying knowledge of the murders.

Although Smith acknowledged his hand writing and his signature, he claimed at trial that the statement was coerced by the police. At the bench, the prosecutor then offered Smith’s statement in evidence. Niland responded: “Well, I think we’re a ways from that yet.” A lengthy discussion ensued, at which the State argued, inter alia, that Smith had already authenticated the document. Niland observed that Smith denied the truth of the content of his written statement, adding: He hasn’t been asked any questions about any purported admission made to him by the defendant or perhaps more importantly any observation that he made with respect to the defendant that’s contained in this statement.

I think the only things that would be admissible from the statement, if any of it was admissible ... is it either ²¹⁴ admissible hearsay exception to the hearsay [sic] or I believe in this statement there’s someplace where he says he was involved with others with regard to one of these shootings and that — and then the only thing, only other thing, he says I think is that the' defendant, he may have some observations that he actually personally made with regard to the defendant that wouldn’t ordinarily be admissible. So I think the next thing that has to happen here is that there be an isolation and a denial on his part or refusal on his part with regard to admissible areas of the statement. The court essentially agreed with the defense. The judge said to the prosecutor: “You’re offering [the statement] en mass and I’m rejecting [it] en mass.” ‘ Thereafter, the trial judge, sua sponte, undertook a review of Smith’s statement to determine whether there was any need for redaction.

Although neither the State nor the defense made any suggestions or requests to the court, the judge concluded that the following portion of Smith’s statement constituted inadmissible “hearsay within hearsay”: “So Don [Gutrick] told TJ [i.e., appellant] about some guy named Gary [Gulston] that he [i.e., Gutrick] had robbed before.” 10 Other than that statement, the court indicated that “the rest of the statement certainly would be admissible....” Nevertheless, in an obvious attempt to exercise care and caution, the trial court asked Niland his “position” about the rest of the statement. Niland responded: “If the witness wrote this, then I don’t have any objection to the contents of it period.” Niland added that he wanted “to clarify” and “make sure” that Smith actually wrote the text of the statement, as well as the questions and answers that were included in the statement. Subsequently, Niland asked the court to redact an exchange between Smith and the detective. According to the transcript, it read: “[Question]: Did TJ and Don say what happened when they were gone? [Answer]: That they left him [i.e., ²¹⁵ Gulston] over his mother’s.” The court readily agreed to Niland’s request.

Thereafter, the court again invited counsel to identify any other concerns, stating: “Now let’s deal with any other issues you wish to deal with.” Niland responded: “The document itself should not be admitted. The contents, if you’re going to admit, should be read to the jury .... ” (Emphasis added). Niland explained his conéerns, stating that if the document itself were admitted the jury might place “greater weight” on it, because it is a document. Niland did not voice any objection to the admission of the content of the statement, however.

The court opted to defer ruling until after the voir dire of Smith. Out of the jury’s presence, Smith was questioned about his role in providing the statement. Smith acknowledged that, with respect to the question and answer portion, he wrote the answers that appeared in the statement, but he claimed that the answers to the questions and the content of his statement were inaccurate. The court then raised the matter of Niland’s earlier request that the statement, if admissible, “should only be read, but not physically admitted.” Niland then renewed his request that the court only permit the prosecutor to read the statement, but bar the State from “physically” admitting the document.

He explained: “You’re giving a lot greater emphasis by giving a prior statement he made and the opportunity for [the jurors] to read it and re-read it and put more emphasis on it than by simply reading it to them and placing it in evidence, and I think this is ... very important. I don’t think it’s just a technical issue I’m raising.” The State disagreed. When the State then offered Smith’s redacted statement, Niland objected only “[o]n the grounds previously stated.” The judge reserved ruling and, at the bench, told the State that it had “to explore a little further an evidentiary basis to show there is an inconsistency.” In his trial testimony, Smith maintained that he did not participate in the murders and was not a witness to what ²¹⁶ occurred. He also denied talking to Jones about the matter.

When the State again offered Smith’s statement into evidence, the court said it would rule “after cross.” On cross-examination, the following occurred: [NILAND]: Your testimony now is that you did not participate in either one of these shootings that took place at Alpine Street and Cricket Place that is the subject of this case? [SMITH]: Yeah. [NILAND]: And you’re the same Derrick Smith who was convicted in a trial by jury of both those murders? [SMITH]: Yes. [NILAND]: Well, how is it that on December the 2nd, 1993, when the police took this statement from- you that you were able to tell them all these things? [SMITH]: They forced me to write a statement. They told me what to say. [NILAND]: The last question on page 6 says, “Did Don or TJ say anything when they came back?” The answer says, ‘When Don came back upstairs Jason asked him where the other person was at and he said we killed him. ” See that? [SMITH]: Yes. [NILAND]: That’s in your writing? [SMITH]: Yes. [NILAND]: Did the policeman tell you to write that? [SMITH]: No, I heard that somewhere. [NILAND]: You heard that somewhere? [SMITH]: Yeah. [NILAND]: You heard that Don had killed the guy? ²¹⁷ [SMITH]: Yeah. (Emphasis added). On redirect examination, Smith insisted that the police had tried to “frame” him.

He also claimed that the police dictated half his statement and he fabricated the other half. Thus, Smith maintained that the content of the statement was not true, adding: “I don’t lie.” Later, the judge said to the prosecutor: “You have offered [the statement], I’ll reserve ruling. We’ll discuss it at a later time.” After the State recalled Detective Rostich, who took Smith’s statement, the State again offered Smith’s written statement into evidence. Before Niland uttered any objection, the court instructed counsel to approach the bench, and the following transpired: [THE COURT]: Other than the objection you have placed on the record do you have any additional objections?

Any reasons why we should not receive [the written statement]? [DEFENSE ATTORNEY]: No, Your Honor. [THE COURT]: Objection is overruled. [The statement] is admitted. The foregoing exchanges clearly demonstrate that the trial judge asked defense counsel on several occasions to identify any objectionable portions of Smith’s statement, with an eye toward redaction, and even alerted Niland to a concern about “hearsay within hearsay.” Moreover, while questioning Smith, Niland actually highlighted Gutrick’s comment, because he specifically asked Smith about it. Most important, contrary to the State’s contention, Niland did not object to the portion of Smith’s statement containing Gutrick’s assertion, nor did Niland generally object to the admission of the content of Smith’s statement. Instead, Niland made a specific and limited challenge to the physical admission of Smith’s statement, and expressly advanced as his sole reason his concern that it would receive undue weight from the jury because it was a document. ²¹⁸ It is well established that a party opposing the admission of evidence “shall” object “at the time the evidence is offered or as soon thereafter as the grounds for objection become apparent.

Otherwise, the objection is waived.” Md. Rule 4-323(a); see Klauenberg v. State, 355 Md. 528, 545 , 735 A.2d 1061 (1999); Hill v. State, 134 Md.App. 327, 351 , 759 A.2d 1164 , cert. denied, 362 Md. 188 , 763 A.2d 735 (2000). A proper objection is required so that the proponent of the evidence has an opportunity to “rephrase the question or proffer so as to remove any objectionable defects, if possible.” Hall v. State, 119 Md.App. 377, 389 , 705 A.2d 50 (1998). A timely objection also enables the trial court to attempt to cure any error, which helps to avoid unnecessary appeals. Id. at 389-90 , 705 A.2d 50 .

Thus, an appellate court may review the admissibility of evidence