State v. Jones

State of Maryland v. Hassan Emmanuel Jones, No. 52, September Term, 2018 CRIMINAL PROCEDURE — SUFFICIENCY OF THE EVIDENCE — ACCOMPLICE CORROBORATION RULE — The accomplice corroboration rule, as it was structured at the time of trial, required evidence independent of accomplice testimony to implicate a defendant in a crime or identify the defendant with the perpetrators of the crime at or near the time it was committed. That evidence was not presented here, and thus the Court of Appeals affirmed the judgment of the Court of Special Appeals overturning the conviction of Respondent as being legally insufficient. CRIMINAL PROCEDURE — ACCOMPLICE CORROBORATION RULE — ABROGATION — The accomplice corroboration rule, in its most stringent form, precludes convicting a defendant based solely on the testimony of the defendant’s accomplices. Slight corroborative evidence is required to sustain a conviction.

The rule applies in a minority of states and is grounded in outdated legal reasoning. Presented with an opportunity to reevaluate the rule and after thorough examination of its utility, the Court of Appeals abrogated the accomplice corroboration rule as it was structured, leaving it exclusively to the jury to assess the credibility of accomplice testimony. In place of the now-abrogated rule, a trial judge should give a cautionary jury instruction when the State introduces accomplice testimony. Circuit Court for Baltimore County Case No. 03-K-15-005488 Argued: January 31, 2019 IN THE COURT OF APPEALS OF MARYLAND No. 52 September Term, 2018 STATE OF MARYLAND v. HASSAN EMMANUEL JONES Barbera, C.J., *Greene McDonald Watts Hotten Getty Wilner, Alan M., (Senior Judge, Specially Assigned) JJ.

Opinion by Barbera, C.J. McDonald, J., concurs and dissents. Watts, J., concurs and dissents. Hotten and Greene, JJ., concur and dissent. Filed: August 28, 2019 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. *Greene, J., now retired, participated in the hearing and Suzanne Johnson conference of this case while an active member of this 2020-03-23 12:20-04:00 Court; after being recalled pursuant to the Maryland Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion.

Suzanne C. Johnson, Clerk We are presented here with an opportunity to reconsider Maryland’s common law accomplice corroboration rule, which requires that accomplice testimony be independently verified to sustain a conviction. For reasons that follow, we abrogate the rule and hold that the jury, after proper instruction about the possible unreliability of accomplice testimony, is entitled to weigh the sufficiency of such evidence without the need for independent corroboration. First, though, we must apply the current accomplice corroboration rule to resolve the present case. In doing so, we affirm the judgment of the Court of Special Appeals, which overturned Respondent’s conviction based on the lack of independent evidence that would corroborate the accomplice testimony.

I. Facts and Procedural History A. The Underlying Incident. Around 4:30 a.m. on August 9, 2015, Sandeep Bhulai’s body was discovered lying next to his vehicle, which was idling with the doors ajar. Mr. Bhulai had been shot multiple times—once in the head, once in the neck, once in the chest, once in the left elbow, and twice in the left arm. The police found 9-millimeter and .380 caliber cartridge casings surrounding Mr. Bhulai.

The police collected fingerprints from Mr. Bhulai’s vehicle and a motor scooter that was found near the scene. The investigation led police to six suspects: (1) Christian Tyson; (2) Keith Harrison; (3) Kareem Riley; (4) Ramart Wilson; (5) Michael Jobes; and (6) Hassan Jones, Respondent here. Fingerprints from Harrison, Riley, Wilson, and Tyson were discovered at the crime scene. Later that summer, police arrested Harrison for marijuana possession and found a .380 caliber handgun that matched the one used in Mr. Bhulai’s murder.

After interviewing a few of the suspects who implicated Jobes, police executed a search warrant on Jobes’s home and found Mr. Bhulai’s cell phone. Cell phone locational data placed phones related to all the suspects, except Respondent and Tyson, near the scene of the murder on the night in question. Respondent was implicated solely by the accounts of Tyson, Riley, and Wilson. Wilson identified Respondent in a photograph, which was allegedly taken on the night of the murder, by writing Respondent’s nickname, “Teefy,” in front of Respondent’s image.1 B. Respondent’s Arrest and Trial.

On September 10, 2015, police arrested Respondent. Respondent initially denied having a nickname, cell phone, and any knowledge of the crime or the other five suspects. After Respondent’s cell phone number was discovered in Jobes’s phone and vice versa, Respondent conceded that he had a cell phone and had the nickname “Teefy;” yet Respondent continued to deny that he knew Jobes. Respondent was later charged with first- and second-degree murder, first-degree felony murder, use of a firearm during a violent crime, conspiracy to commit armed carjacking, and armed robbery.

At Respondent’s trial, Tyson, Riley, and Wilson testified pursuant to plea agreements. Their testimony was consistent and demonstrated that the group, including Respondent, attended a party in Reisterstown and then an “after party” in Woodlawn on the night of the murder starting sometime around 9 p.m. The State entered into evidence a 1 Although Wilson identified Respondent in the photograph as “Teffy,” the State, in its briefs, and the trial transcripts refer to him as “Teefy.” This bears no significance to the issues at hand. 2 photograph that Wilson testified was taken on his cell phone sometime between 12:30 a.m. and 1:40 a.m. and depicted Wilson, Respondent, and the rest of the group. Wilson testified that after leaving the party, the group agreed to go to Middle River to steal something.

When they reached a residential area, the group split up. Wilson further testified that he, Riley, and Harrison attempted to steal a motor scooter, but they were unable to trigger the ignition. Wilson then helped Riley return to Riley’s car because he was “very intoxicated.” Meanwhile, Harrison left to reconnect with the others. Mr. Bhulai was killed between 3:00 and 3:15 a.m.

Tyson testified about the murder. He said that the group, including Respondent, forced Mr. Bhulai out of his car at gunpoint. While holding Mr. Bhulai at gunpoint, Tyson took Mr. Bhulai’s cell phone. Jobes, Harrison, and Respondent then shot Mr. Bhulai multiple times.

Immediately after the shooting, Jobes took Mr. Bhulai’s wallet, and the group fled to Riley’s car. Riley and Wilson, who remained in Riley’s car during the murder, both testified that they heard gunshots. Shortly thereafter, the group returned and Harrison, Jobes, and Respondent were all carrying handguns. According to Riley’s testimony, Respondent told him to “hurry up and get us away from here, we just shot someone.” In addition to the accomplices’ testimony, the State presented testimony from detectives and forensic experts and offered physical evidence.

Although that evidence “generally corroborated” the accomplices’ testimony regarding their “movements and activities that evening,” none of the physical evidence (i.e., locational data and fingerprints) directly implicated Respondent. 3 After the State closed its case, Respondent moved for a judgment of acquittal on all charges, arguing that the accomplices’ testimony was not corroborated. The court denied the motion, ruling that the photograph on Wilson’s phone served as independent corroboration. Respondent did not put on a defense case. Among other instructions, the court instructed the jury that the accomplice testimony must be independently corroborated.

The court read pattern instruction MPJI- 3:1—Testimony of Accomplice—set forth in the Maryland State Bar Standing Committee on Pattern Jury Instructions, see MPJI-Cr 3:11 Testimony of Accomplice, which, with the names added, states: You have heard testimony from Christian Tyson, Kareem Riley and Ramart Wilson who were accomplices. An accomplice is one who knowingly and voluntarily cooperated with, aided, advised or encouraged another person in the commission of a crime. The Defendant cannot be convicted solely on the uncorroborated testimony of an accomplice. You must first decide whether the testimony of Christian Tyson, Kareem Riley and Ramart Wilson was corroborated before you consider it.

Only slight corroboration is required. This means there must be some evidence which you believe in addition to the testimony of Christian Tyson, Kareem Riley and Ramart Wilson that shows either, one, that the Defendant committed the crime charged; or two, that the Defendant was with others who committed the crime at or about the time and place the crime was committed. If you find that the testimony of Christian Tyson, Kareem Riley and Ramart Wilson has been corroborated, you may consider it but you should do so with caution and give it the weight you believe it deserves. If you do not find that the testimony of Christian Tyson, Kareem Riley and Ramart Wilson has been corroborated, you must disregard it and may not consider it as evidence against the Defendant.

You have heard evidence that Christian Tyson, Kareem Riley and Ramart Wilson have pleaded guilty to a crime arising out of the same events for which the Defendant is now on trial. The guilty plea of th[ese] witness[es] must not be considered as evidence against this [D]efendant. You may consider the testimony of a witness who testifies for the State as a result of a plea agreement. However, you should consider such testimony with caution because the testimony may have been influenced by a desire to gain a benefit by testifying against the Defendant. 4 Of all the charges, the jury convicted Respondent only of conspiracy to commit armed carjacking.

Respondent then moved for a new trial, again asserting that the accomplices’ testimony lacked the requisite independent corroboration. The trial judge again denied the motion and imposed a thirty-year sentence. Respondent appealed, and a three-judge panel of the Court of Special Appeals, in an unreported opinion, reversed the judgment of conviction. The court held that the accomplices’ testimony was not independently corroborated by other evidence, leaving the remaining evidence legally insufficient to sustain Respondent’s conviction.

The panel of the Court of Special Appeals then suggested that this Court might reconsider the accomplice corroboration rule. Judge (now Chief Judge) Fader, writing on behalf of the panel, expressed skepticism that the current rule strikes the “best balance between the potential dangers of accomplice testimony and its potential value.” The Court of Special Appeals hinted that this Court should consider adopting a modified version of the common law rule for accomplice testimony, under which the jury would decide how much weight to afford accomplice testimony, guided by a cautionary instruction about the possible unreliability of such testimony. The State filed a petition for a writ of certiorari, which we granted. State v. Jones, 461 Md. 612 (2018).

The State poses two questions for our consideration: (1) Did the Court of Special Appeals err in determining that Jones’s demonstrably false statements exhibiting a consciousness of guilt about Bhulai’s murder were not sufficient to corroborate the accomplices’ testimony and therefore the evidence was not sufficient to convict Jones of conspiracy to commit armed carjacking? 5 (2) In the alternative, should the accomplice corroboration rule that a person may not be convicted on the uncorroborated testimony of an accomplice be replaced or revised to allow the factfinder to measure the weight of the evidence and judge the credibility of accomplices, with appropriate instruction about accomplice testimony?

II

Discussion For reasons we shall explain, we hold that the Court of Special Appeals did not err in its application of the extant accomplice corroboration rule. We further hold that the rule, as currently structured, be abrogated. In place of that rule, we adopt today a new rule that will no longer require that accomplice testimony be corroborated by independent evidence to sustain a conviction. We do so in exercise of our constitutional authority to change the common law.

Harrison v. Montgomery Cty. Bd. of Educ., 295 Md. 442, 459 (1983). Indeed, “we have never construed [the doctrine of stare decisis] to inhibit us from changing or modifying a common law rule by judicial decision where we find, in light of changed conditions or increased knowledge, that the rule has become unsound[.]” Id. A. Sufficiency of the Evidence of Independent Corroboration?

We begin with the first question presented—whether the Court of Special Appeals properly applied the current accomplice corroboration rule to the facts of this case. The accomplice corroboration rule requires exactly what its name suggests—that the State must present independent corroboration of accomplice testimony to sustain a conviction. See Williams v. State, 364 Md. 160, 179 (2001) (“[I]n Maryland . . . a conviction may not rest on the uncorroborated testimony of an accomplice[.]”); Collins v. State, 318 Md. 269, 280 (1990) (“The rule in Maryland [is] that a person accused of a crime 6 may not be convicted based on the uncorroborated testimony of an accomplice[.]”); Lynn McLain, Maryland Practice Series: Maryland Evidence State and Federal § 300:6(b)(ii), at 372-75 (3d ed. 2013). The rationale for the rule, the flaws of which we discuss below, is to combat the possible untrustworthiness of accomplice testimony because accomplices may lie to protect themselves.

See Watson v. State, 208 Md. 210, 217 (1955) (stating that accomplice testimony “should be regarded with great suspicion and caution” because an accomplice may be incentivized to “shield himself from punishment” by blaming another or seek “clemency by turning State’s evidence”). When reviewing a lower court’s application of the rule, we evaluate whether “the corroborative evidence was legally sufficient to warrant submission of the case to the jury.” Wright v. State, 219 Md. 643, 652 (1959). Our review is limited to ascertaining whether there exists any independent evidence “tending either (1) to identify the accused with the perpetrators of the crime or (2) to show the participation of the accused in the crime itself.” Ayers v. State, 335 Md. 602, 638 (1994) (citation omitted); see also Turner v. State, 294 Md. 640, 646 (1982) (holding that “evidence offered as corroboration must be independent of the accomplice’s testimony”). The corroborative evidence need only be “slight,” but it must establish “either of [those] matters” before accomplice testimony can be submitted to the jury.

Ayers, 355 Md. at 638. Our review is not to be “confuse[d] [with] the admissibility of evidence”; we are not concerned with whether the accomplice testimony is “admissible substantively” but rather whether that evidence, once admitted, is sufficiently corroborated to “sustain a conviction.” Turner, 294 Md. at 646 . 7 Respondent was convicted of conspiracy to commit armed carjacking, based solely on the accomplices’ testimony. That conviction can be sustained only if there was evidence offered at trial that either connected Respondent to the others who agreed to commit the crime in proximity to the time and place it occurred or showed that he conspired with one or more of them to commit that crime. The State insists that such evidence was presented.

We disagree. When ruling upon the motion for judgment of acquittal at trial, the court relied solely on the group photograph taken on Wilson’s cell phone at the “after party” and, according to Wilson, showed Respondent standing with him and the other accomplices. The court was persuaded that the photograph—State’s Exhibit 106—“place[d] the [Respondent] with the perpetrators of the offense.” The State argues first that the photograph taken with Wilson’s cell phone and purporting to depict Respondent with the accomplices provided the requisite independent corroborative evidence. According to the State, the photograph shows Respondent’s presence with the other participants earlier on the night of the crime.

We agree with the Court of Special Appeals that the photograph “cannot constitute independent corroboration because it depends entirely on Mr. Wilson’s testimony.” Jones v. State, No. 1988, 2016 Term, slip op. at 9 (Md. Ct. Spec. App. Aug. 8, 2018). This is so because the evidence cannot “pull[] itself up by its own bootstraps,” meaning that the accomplice’s testimony cannot be used to corroborate itself. See Jeandell v. State, 34 Md. App. 108, 112 (1976); 8 see also Turner, 294 Md. at 647 (“It would eviscerate the rule to allow an accomplice to corroborate himself.”).2 The State’s argument does not rest entirely on State’s Exhibit 106, however, but rather on two additional evidentiary items: Respondent’s cell phone, which contained the contact information of at least two of the accomplices; and Respondent’s post-arrest statements, in which he proffered an alibi and denied knowing the accomplices.

The State argues that, taken together, these items constitute circumstantial evidence that Respondent knew when and where the crime had occurred; he was associated with the accomplices when the conspiracy occurred; and he now seeks to distance himself from those facts given his consciousness of guilt. Therefore, the State claims, the Court of Special Appeals erred in failing to consider that Respondent’s false statements to the police sufficiently connected him to the crime and/or the accomplices in proximity to the crime, and thereby corroborated the accomplices’ testimony. See Nolan v. State, 213 Md. 298, 309 (1957) (“The corroborating evidence . . . may consist of . . . untruthful statements made by [the accused.]”). Respondent uttered the allegedly false statements during an interrogation immediately following his arrest.

After waiving his Miranda3 rights, Respondent was 2 The State refers to a second photograph, State’s Exhibit 107, which allegedly shows Respondent with Wilson, Tyson, and Jobes at a pool party a week after the conspiracy. This photograph suffers from the same flaw as Exhibit 106—it requires accomplice testimony to verify its contents. It suffers from an additional flaw in that, even if the current rule would allow such self-corroboration, the photograph was taken a week after the alleged conspiracy occurred and, as such, does not sufficiently connect Respondent to the accomplices proximate to the time and place of the crime. 3 See Miranda v. Arizona, 384 U.S. 436 (1966). 9 questioned about his whereabouts on the night in question. In response to a question about why he was in Essex, Respondent replied, “I wasn’t there . . .

I was probably asleep or something.” Notably, the police had not provided Respondent with any information about the alleged crime. During a subsequent exchange, Respondent denied knowing his accomplices; yet, police found Harrison’s and Jobes’s phone numbers saved in Respondent’s cell phone. The State is correct that “corroborating evidence may be circumstantial and may consist of . . . untruthful statements made by [the defendant].” It cannot be overlooked, however, that such evidence and reasonable inferences drawn from it must either connect Respondent to “the commission of the crime,” Nolan, 213 Md. at 309 , or place him “with [his accomplices] at about that time,” McDowell v. State, 231 Md. 205, 214 (1963). None of Respondent’s statements “establish either of these matters.” Brown v. State, 281 Md. 241, 244 (1977).

We agree with and cannot improve upon the Court of Special Appeals’ analysis on this point and therefore include it here: Here, Mr. Jones’s false statement that he did not know his alleged accomplices does not get the State any closer to either of these points. Setting aside for the moment the testimony of the accomplices, nothing more than pure speculation ties Mr. Jones’s denials to the carjacking conspiracy or the accomplices on the evening in question. Mr. Jones’s interview took place more than a month after the murder. At that time, he may have lied for any number of reasons: he may not have wanted to be associated with individuals who he believed were involved with criminal activity or who had already been picked up by the police; he may have known one or more of them to be bad actors; he may have engaged in other criminal activity with them; or he may have just distrusted the police.

Nothing in the record, other than the accomplices’ testimony, indicates one of these reasons as being any more likely than any of the others. The State, relying on the Georgia Supreme Court’s decision in Threatt v. State, 748 S.E.2d 400 (Ga. 2013), argues that Mr. Jones’s false statements 10 are enough because, even if they do not relate to the specifics of this crime, they show consciousness of guilt. We disagree. . . . Threatt does not stand for the proposition that consciousness of guilt evidence alone can provide the necessary corroborative testimony. . . .

Moreover, even if consciousness of guilt were enough by itself, Mr. Jones’s denials do not demonstrate consciousness of guilt of the crime at issue. Consciousness of guilt evidence requires four sequential inferences: “(1) from the defendant’s behavior to [lying]; (2) from the [lying] to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged.” State v. Simms, 420 Md. 705, 729 (2011) (quoting Decker v. State, 408 Md. 631, 642 (2009)). The circumstances here do not support this inferential chain. Stripped of the testimony of the accomplices, there is nothing more than sheer speculation to tie Mr. Jones’s denial that he knew his alleged accomplices—coming more than a month after the murder—to consciousness of guilt of this crime.

See Decker, 408 Md. at 642 (asserting that each inference requires evidentiary support). Furthermore, if the accomplice corroboration rule can be defeated by a defendant’s general denial of any knowledge of his alleged accomplices— without tying that in some way to the crime itself or the time and location of the crime—it is difficult to see how the rule would not be rendered meaningless. Corroboration need only be slight, but that does not mean that it can be wholly speculative. Jones, slip op. at 11-13 (citations omitted) (footnote omitted); see also Thomas v. State, 372 Md. 342, 355-58 (2002) (noting that, without physical evidence connecting the defendant to the crime or the crime scene, the defendant’s statement is “too ambiguous and equivocal” to constitute consciousness of guilt evidence).

Put simply, the inferences drawn by the State here are mere conjecture given the record before us, and, as the Court of Special Appeals aptly stated, “[c]orroboration need only be slight, but that does not mean that it can be wholly speculative.”4 Jones, slip op. 4 Judge Watts, in her dissent, asserts that Respondent’s false statements that he did not (continued . . . ) 11 at 13. Accordingly, we hold that the State failed to corroborate the accomplices’ testimony. Without that testimony, it follows that the State did not provide legally sufficient evidence to support Respondent’s conviction of conspiracy to commit armed carjacking. We therefore affirm the judgment of the Court of Special Appeals reversing Respondent’s conviction.

Having resolved the State’s first question, we turn next to the State’s request that we jettison the accomplice corroboration rule in favor of the common law rule that allowed defendants to be convicted based solely on the testimony of an accomplice. See Luery v. State, 116 Md. 284, 292 (1911) (“It is true that at common law a verdict of the jury would ( . . . continued) know the accomplices, coupled with his apparent knowledge about the date and time of the alleged crime, “elevated” those statements “to the slight independent corroboration necessary for the accomplices’ testimony to be considered by the jury.” State v. Jones, No. 52, Sept. 2018 Term, slip op. at 5 (Watts, J., concurring in part and dissenting in part). But those statements illustrate nothing more than Respondent’s knowledge of the accomplices’ existence and apparent awareness of when the crime occurred. Neither fact places Respondent at the scene of the crime or with the perpetrators of the crime near its commission.

Neither fact connects Respondent to the commission of the crime at all, unless one reads facts into the record (e.g., Respondent did not simply know the accomplices, but rather was closely associated with them) and then makes certain assumptions (e.g., because there was a close connection, Respondent must have been with the accomplices on the night in question). To do so, however, requires engaging in the “mere speculation” Judge Watts warns against, id. at 2, particularly given the lack of physical evidence connecting Respondent to the crime. Our holding is straightforward and in line with our precedent: false statements alone, absent a nexus to the commission of the crime or the perpetrators in proximity to the crime, do not constitute sufficient corroborative evidence to justify sending the case to the jury. See Wright v. State, 219 Md. 643, 651 (1959) (crediting, among other evidentiary items, “false statements [made by the defendant] with respect to [the defendant’s] association with the accomplices a few minutes before the fire was set” as sufficient corroborative evidence (emphasis added)); Nolan v. State, 213 Md. 298, 309 (1957) (“The corroborating evidence may . . . consist of . . . untruthful statements made by [the accused] in respect to matters connected with the commission of the crime” (emphasis added)). 12 not be set aside merely because [it was] founded on the evidence of an accomplice which was not corroborated[.]”).

B. Abrogation of the Accomplice Corroboration Rule. We begin with a bit of history found in VII John H. Wigmore, Wigmore on Evidence: Evidence in Trials at Common Law, § 2056 (Chadbourn rev. 1978). According to that treatise, concerns regarding accomplice testimony have existed since at least the 1600s. Id. § 2056, at 405.

By the end of the 1700s, English courts had developed “a general practice . . . to discourage a conviction founded solely upon the testimony of an [uncorroborated accomplice].” Id. This practice was not a rule of law that bound the jury, but instead, “a mere exercise of [the judge’s] common-law function of advising the jury upon the weight of the evidence.” Id. The actual rule of law regarding accomplice testimony was uncontroverted—convictions based solely on accomplice testimony were legally sufficient. Id. § 2056, at 407 (“the judges are unanimously of the opinion that an accomplice alone is a competent witness, and that if the jury, weighing the probability of his testimony, think him worthy of belief, a conviction supported by such testimony alone is perfectly legal.” (quoting R. v. Atwood and Robbins (1788), 1 Leach Cr.

L. 464, 465 (4th ed. 1815))). Courts in the United States followed suit and counseled juries to exercise caution when evaluating the reliability of accomplice testimony. Id. § 2056, at 407-08. Then, as described in Wigmore, “in a misguided moment[,] the orthodox function of the judge to assist the jury on matters of fact was (except in a few jurisdictions) eradicated from our system.” Id. § 2056, at 416.

Because judges could no longer assist the jury, “[t]he makers 13 of this innovation upon established trial methods were thus obliged to turn into a rule of law the old practice as to accomplices, if they wished to retain its benefit at all. This they therefore did.” Id. § 2056, at 416-17. In other words, because newly-established rules prevented judges from influencing how juries perceived the facts presented, jurisdictions assumed that a stringent or categorical approach was the only way to protect against the unreliability of accomplice testimony. As a consequence, “nearly half of the jurisdictions of the United States” adopted an accomplice corroboration rule, requiring, in varying degrees, that the testimony of an alleged accomplice be corroborated by independent evidence, that is, evidence not dependent on an accomplice.

Id. § 2056, at 414-17. Maryland was one such jurisdiction.5 This Court adopted its version of the rule in 1911; before then, there was no common law corroboration requirement. Luery, 116 Md. at 293-94 . We stated earlier in this opinion that our current accomplice corroboration rule prevents a defendant from being convicted solely on the testimony of his or her accomplices without independent, albeit slight, corroboration.

In re Anthony W., 388 Md. 251, 264 (2005). We have said that the accomplice corroboration rule was necessary for two reasons: “(1) the witness offering the testimony is admittedly contaminated with guilt 5 It is unclear if this Court adopted the accomplice corroboration rule because the Court sought to retain the ability to instruct juries about the unreliability of accomplice testimony or because a majority of other jurisdictions had also adopted the rule, but both reasons are problematic. The law in Maryland, at the time the Court adopted the rule in 1911, was that “trial judges did not have to give instructions unless they wanted to and they rarely did.” Criminal Procedure Reform Achieved in Maryland, 11 Md. L. Rev. 319 , 320 (1950). Therefore, it seems unlikely that the Court was concerned about retaining an ability it rarely exercised. 14 and (2) the possibility of an ulterior motive on the part of the accomplice who seeks to curry favor with both the prosecutor and the police in the hope of obtaining a lesser sentence or a reduced charge.” Turner, 294 Md. at 642 (citations omitted).

Although never expressed by this Court, the Court of Special Appeals aptly explained in its unreported opinion in the case now before us that an underlying presumption of the accomplice corroboration rule is that jurors are “incapable of determining reliably the veracity of the accomplice testimony.” Jones, slip op. at 6. It can be said, then, that the current accomplice corroboration rule represents an attempt to balance credibility concerns with the potential benefits of accomplice testimony. Today, we seek to strike a better balance. Although, as structured, the accomplice corroboration rule addresses the credibility concerns discussed above, the manner in which the rule addresses those concerns is far from perfect.

One of the main criticisms of the rule is that it operates indiscriminately regardless of the apparent credibility of the accomplices. We agree with the Court of Special Appeals that [o]n [the] one hand, the rule can act as a complete bar to a factfinder’s consideration of potentially overwhelming evidence of guilt for want of a specific type of evidence. On the other hand, the restriction—and any protective value it might offer—evaporates entirely if the State is able to offer any slight piece of evidence of that type, even if that evidence is itself of minimal persuasive value. Stated differently, under this rule, a factfinder’s consideration of evidence she or he might conclude is highly reliable can be forbidden in one case, while in a different case the same factfinder may be permitted to weigh a much lesser quantum of much more suspect evidence.

Jones, slip op. at 16; see also Audett v. United States, 265 F.2d 837, 847 (9th Cir. 1959) (“credibility is a matter of elusive variety, and it is impossible and anachronistic to 15 determine in advance that, with or without promise, a given man’s story must be distrusted.” (quoting Wigmore, § 2057, at 417)). The arbitrariness of the accomplice corroboration rule is amplified when one considers that there is no similar rule for other interested witnesses. Testimony from jailhouse informants, for instance, is sufficient to sustain a conviction without corroboration even though such testimony is (arguably) less reliable than that of an accomplice. See, e.g., Correll v. State, 215 Md. App. 483, 496-502 (2013) (allowing the jury to assess the credibility of jailhouse informant testimony); Russell D. Covey, Abolishing Jailhouse Snitch Testimony, 49 Wake Forest L. Rev. 1375 , 1403 (2014) (“accomplice testimony retains at least some indicia of reliability because ‘the accomplice inculpates herself in the process.’” (citation omitted)).

Testimony of accessories after-the- fact, which also should be considered with caution because it might have been induced by the prosecution, similarly does not require corroboration. See Rivenbark v. State, 58 Md. App. 626 , 634 n.1 (1984) (“If a witness qualifies merely as an accessory after the fact, he is not usually regarded as an accomplice and hence his testimony need not be corroborated.”). The testimony of a witness who is paid by a party to do so (e.g., an expert witness) can, in a given case, raise similar reliability concerns; yet, once again, no corroboration requirement exists. See Scott v. State, 310 Md. 277, 294 (1987).

It has also been said that “the greatest source of injustice in the form of conviction of innocent men is the erroneous identification by eye-witnesses,” “[y]et the testimony of a customer in a bank who gets a fleeting glimpse of the robber and who identifies defendant as the man he saw is enough to convict the defendant, but the testimony of three or four of defendant’s 16 partners, if uncorroborated, is insufficient under our law.” Roy A. Gustafson, Have We Created a Paradise for Criminals?, 30 S. Cal. L. Rev. 1 , 12 (1956). And, insofar as it limits the jury’s ability to assess witness credibility, the accomplice corroboration rule runs afoul of the “fundamental principle of Maryland law that, in a criminal case tried before a jury, assessing a witness’s credibility is a matter solely for the jury.” Devincentz v. State, 460 Md. 518, 529 (2018). Considering these and other concerns with the accomplice corroboration rule, it should come as no surprise that most jurisdictions (thirty-two states, the District of Columbia, the federal courts, Puerto Rico, Guam, and the Virgin Islands) either have not adopted the accomplice corroboration rule or have since repealed it.6 Currently, Maryland 6 See Davis v. People, 490 P.2d 948, 950 (Colo. 1971); State v. Johnson, 179 A.3d 780, 786 (Conn.

App. 2017); Brooks v. State, 40 A.3d 346, 350 (Del. 2012); Ali v. United States, 581 A.2d 368 , 377 n.17 (D.C. 1990); Smith v. State, 507 So. 2d 788, 790 (Fla. Dist. Ct. App. 1987); State v. Carvelo, 361 P.2d 45, 59 (Haw. 1961); People v. Nitti, 133 N.E.2d 12, 13 (Ill. 1956); Lowery v. State, 547 N.E.2d 1046, 1053 (Ind. 1989); State v. Bey, 535 P.2d 881, 888 (Kan. 1975); State v. Kyles, 233 So. 3d 150, 157-58 (La. Ct. App. 2016); Commonwealth v. DeBrosky, 297 N.E.2d 496, 504 (Mass. 1973); State v. Reardon, 486 A.2d 112, 119 (Me. 1984); People v. Lemmon, 576 N.W.2d 129 , 137 n.22 (Mich. 1998); Jones v. State, 203 So. 3d 600, 607 (Miss. 2016); State v. Sistrunk, 414 S.W.3d 592, 598 (Mo.

Ct. App. 2013); State v. Huffman, 385 N.W.2d 85, 90 (Neb. 1986); State v. Thresher, 442 A.2d 578, 582 (N.H. 1982); State v. Spruill, 106 A.2d 278, 280-82 (N.J. 1954); State v. Montoya, 384 P.3d 1114 , 1120 (N.M. Ct. App. 2016); State v. Keller, 256 S.E.2d 710, 714 (N.C. 1979); State v. O’Dell, 543 N.E.2d 1220, 1225 (Ohio 1989); Commonwealth v. Brown, 52 A.3d 1139, 1165 (Pa. 2012); State v. Pona, 66 A.3d 454, 471 (R.I. 2013); State v. Hicks, 185 S.E.2d 746, 749 (S.C. 1971); State v. Dana, 10 A. 727 , 729 (Vt. 1887); Johnson v. Commonwealth, 298 S.E.2d 99, 101 (Va. 1982); State v. Harris, 685 P.2d 584, 586-87 (Wash. 1984), overruled in part on other grounds by State v. McKinsey, 810 P.2d 907 (Wash. 1991); State v. Vance, 262 S.E.2d 423, 426 (W. Va. 1980); Linse v. State, 286 N.W.2d 554, 558 (Wis. 1980); Adams v. State, 79 P.3d 526, 530 (Wyo. 2003); Caminetti v. United States, 242 U.S. 470, 495 (1917); Pueblo v. Baez Figueroa, No. DOP2009G0092, 2012 WL 6931128 , at ¹⁰ (P.R. Cir.); 8 Guam Code Ann. § 95.10 (Guam); 5 V.I. Code Ann. tit. 5, § 740 (Virgin Islands). See also Derek J. T. Adler, Ex post facto limitations on (continued . . . ) 17 and Tennessee are the only jurisdictions with a judicially-created accomplice corroboration rule. See State v. Collier, 411 S.W.3d 886, 894 (Tenn. 2013).7 And though this Court has consistently relied upon the accomplice corroboration rule since 1911,8 we have also ( . . . continued) changes in evidentiary law: Repeal of Accomplice Corroboration Requirements, 55 Fordham L. Rev. 1191 , 1205 n.81 (1987) (“Between 1973 and 1980, six United States jurisdictions withdrew their accomplice corroboration requirements.”) (citing Ariz. Rev. Stat. Ann. § 13-136 (repealed 1976); Ky.

R. Crim. Proc. 9.62 (abolished 1980); N.H. Rev. Stat. Ann. § 579:4 (repealed 1973); Utah Code Ann. § 77-31-18 (superseded 1979); V.I. Code Ann. tit. 14 § 17 (repealed 1978); Wyo. Stat. § 7-6-262 (repealed 1975)); George Fisher, The Jury’s Rise as Lie Detector, 107 Yale L.J. 575 , 702 n.595 (1997) (summarizing the history and trends of the accomplice corroboration rule). 7 The remaining sixteen states have statutorily adopted their own varying forms of the rule. McGowan v. State, 990 So. 2d 931, 987 (Ala.

Crim. App. 2003) (citing Ala. Code § 12-21 - 222 (1975)); M.H. v. State, 382 P.3d 1201, 1205 (Alaska Ct. App. 2016) (citing Alaska Stat. § 12.45.020 ); MacKool v. State, 231 S.W.3d 676, 688 (Ark. 2006) (citing Ark. Code Ann. § 16-89-111 (e)(1)(A)); People v. Whalen, 294 P.3d 915, 959 (Cal. 2013) (citing Cal.

Penal Code § 1111 ), disapproved of on other grounds by People v. Romero, 354 P.3d 983 , 1014 n.17 (Cal. 2015); Robinson v. State, 812 S.E.2d 232, 235 (Ga. 2018) (citing Ga. Code Ann. § 24-14-8 ); State v. Lankford, 399 P.3d 804, 834 (Idaho 2017) (citing Idaho Code § 19-2117 ); State v. Barnes, 791 N.W.2d 817, 823 (Iowa 2010) (citing Iowa R. Crim. P. 2.21(3)); State v. Horst, 880 N.W.2d 24, 37 (Minn. 2016) (citing Minn. Stat. § 634.04 ); State v. Kills on Top, 793 P.2d 1273, 1294 (Mont. 1990) (citing Mont.

Code Ann. § 46-16 - 213); Evans v. State, 944 P.2d 253, 257 (Nev. 1997) (citing Nev. Rev. Stat. § 175.291 (1967)); People v. Davis, 66 N.E.3d 1076, 1082 (N.Y. 2016) (citing N.Y. Crim. Proc. Law § 60.22 ); State v. Reddig, 876 N.W.2d 34, 36 (N.D. 2016) (citing N.D. Cent.

Code § 29 - 21-14); Postelle v. State, 267 P.3d 114, 126 (Okla. Crim. App. 2011) (citing Okla. Stat. tit. 22, § 742 ); State v. Washington, 330 P.3d 596, 604 (Or. 2014) (citing Or.

Rev. Stat. § 136.440 ); State v. Dunkelberger, 909 N.W.2d 398, 400 (S.D. 2018) (citing S.D. Codified Laws § 23A-22-8); Smith v. State, 436 S.W.3d 353, 369 (Tex. Crim. App. 2014) (citing Tex. Code Crim.

Proc. Ann. art. 38.14). 8 In re Anthony W., 388 Md. 251, 264 (2005); Williams v. State, 364 Md. 160, 179 (2001); Ayers v. State, 335 Md. 602, 637 (1994); Collins v. State, 318 Md. 269, 280 (1990); Turner v. State, 294 Md. 640, 641-42 (1982); Brown v. State, 281 Md. 241, 244 (1977); State v. Foster, 263 Md. 388, 394 (1971); Strong v. State, 261 Md. 371, 377 (1971); Veney v. State, 251 Md. 159, 168-69 (1968); McDowell v. State, 231 Md. 205, 213-14 (1963); Boggs v. State, 228 Md. 168, 170 (1962); (continued . . . ) 18 recognized the rule’s “limited utility.” Brown, 281 Md. at 246 . It long ago was said, and it holds true today, that “[t]he degree of credit to be given to a witness, whatever may be his character or position in a cause, should not be arbitrarily determined in advance of his testimony and in ignorance of the circumstances affecting its credibility.” State v. Litchfield, 58 Me. 267, 270 (1870). We now recognize, as have the Supreme Court, federal courts, and the majority of state courts, that a blanket rule requiring corroboration for accomplices intrudes too far into the jury’s constitutional role as factfinder and unnecessarily and arbitrarily deprives the jury of the opportunity to assess and decide the credibility of potentially highly relevant evidence.

Forty years ago, Professor Wigmore, widely considered the “foremost authority in the field of evidence,” Reed v. State, 283 Md. 374, 403 (1978), recognized the limited utility of the accomplice corroboration rule. He observed: “We have passed beyond the stage of thought in which [an accomplice’s] commission of crime, self-confessed, is deemed to render him radically a liar.” VII Wigmore, Evidence, § 2057, at 417. “The extreme case of the wretch who fabricates merely for the malicious desire to drag others down in his own ruin can be no foundation for a general rule.” Id. Professor Wigmore, quoting Chief Baron Joy, Evidence of Accomplices 4 (1844), promoted an alternative approach to the fixed, unvarying general rule: “Why not leave the credit of the accomplice to be dealt with by the jury, subject to such observations upon it from the judge as each particular case may suggest?” Id. § 2057, at 418. The Supreme Court has similarly ( . . . continued) Mulcahy v. State, 221 Md. 413, 426-28 (1960); Wright v. State, 219 Md. at 646-47 ; Nolan v. State, 213 Md. 298, 309 (1957); Watson v. State, 208 Md. 210, 217 (1955). 19 suggested that the “better practice” when addressing accomplice testimony is to caution the jury “against too much reliance” upon such testimony.

Holmgren v. United States, 217 U.S. 509, 524 (1910). This alternative approach—allowing the jury to determine the credibility of accomplice testimony following a cautionary instruction—is the rule we adopt today. Henceforth, when accomplices testify to uncorroborated facts, the issue will be the weight of the evidence, not its legal sufficiency and trial courts need only give a cautionary instruction.9 See United States v. Diaz, 176 F.3d 52, 92 (2d Cir. 1999). We are mindful that in abrogating the accomplice corroboration rule, which we do not do lightly, we are overturning precedent established over a century ago and maintained ever since.

See Luery, 116 Md. at 293-94 . Yet, the mere longevity of a common law rule should not necessarily dictate its preservation, particularly when reasoned analysis demonstrates the wisdom of eliminating the rule. This Court is free to, and we are convinced we should, modify the common law when “experience demonstrates that it is unrealistic or unwise to enforce a rule in the form [previously] expressed.” Houghton v. Forrest, 412 Md. 578, 587 (2010) (emphasis added). We do so here.

We hold that, in criminal jury trials, the courts should disturb as little as possible the jury’s role of factfinder, as established under the Maryland Constitution. This deference to the jury restores the balance between the concerns underlying accomplice testimony and its potential benefits. 9 Procedurally, the trial court no longer needs to determine on the front end, typically by way of a defense motion for judgment of acquittal, whether, as a matter of law, the State has provided corroborative evidence to send the case to the jury. Instead, after accomplice testimony is presented, the court only needs to issue a cautionary jury instruction. Once that instruction is issued, the weight and credibility of the accomplice testimony is left entirely to the jury to decide. 20 C. Application of the New Rule in the Present Case?

Having abrogated the extant accomplice corroboration rule and replaced it with the modified common law rule, we are now left to decide whether the new rule should apply to Respondent. For the reasons discussed below, it should not. Generally, judicially-initiated changes to the common law apply prospectively, that is, they apply in the case before us and all similar cases moving forward. Remes v. Montgomery County, 387 Md. 52, 77 (2005); see also Boblitz v. Boblitz, 296 Md. 242, 275 (1983).

We have long recognized, however, that this general rule applies primarily in civil cases and not criminal cases, as its application in criminal cases “may . . . impinge upon basic fairness.”10 Lewis v. State, 285 Md. 705, 713 (1979); see also Williams v. State, 292 Md. 201, 217 (1981) (stating that “particularly in criminal cases, changes in the common law ordinarily should have only prospective effect when considerations of fairness are present” (emphasis added)). Accordingly, in several criminal cases, we have applied a common law change solely prospectively—i.e., we applied the new rule exclusively in similar future cases but not in the case before us.11 See, e.g., State v. Hawkins, 326 Md. 270, 295 (1992); Jones v. State, 302 Md. 153, 161 (1985), abrogated on other grounds 10 Even in civil cases, there are instances in which the “interest[s] of justice” dictate that a common law change should be given “only prospective effect.” Julian v. Christopher, 320 Md. 1, 10 (1990) (“Contracts are drafted based on what the law is; to upset such transactions even for the purpose of improving the law could be grossly unfair. Overruling prospectively is particularly appropriate when we are dealing with decisions involving contract law.”). 11 This is not to say that common law changes can never apply in the criminal case that triggers the rule change. There may well be criminal cases in which applying such changes would be appropriate.

We merely state here that before doing so, this Court will carefully consider whether applying the new rule would be fair given the facts before us. 21 by Surland v. State, 392 Md. 17, 32-36 (2006); Williams, 292 Md. at 220 ; Lewis, 285 Md. at 713 . Principles of fairness dictate that we apply the rule adopted herein not to the case before us, but rather solely prospectively. Our decision is guided by Carmell v. Texas, 529 U.S. 513 (2000). There, the Supreme Court addressed whether the retroactive application of a Texas statute repealing a corroboration requirement in certain sexual assault cases violated the Ex Post Facto Clause.

Id. at 516 . Under the amended statute, a “victim’s testimony alone,” id., could support a conviction if the victim was under 18 (the prior rule required corroboration of the victim’s testimony if the victim was over 14), id. at 519 . The Court refused to apply the new rule to the case before it, explaining that doing so was “grossly unfair” because it lowered “the quantum of evidence required to [secure a] convict[ion][.]” Id. at 532, 544-47 . While the Court’s analysis was grounded in the Ex Post Facto Clause, which does not apply to judicially-initiated changes to the common law, see Rogers v. Tennessee, 532 U.S. 451, 460 (2001), the general principles enunciated there apply here.

Under the new rule we adopt in this opinion, the State in future cases can attempt to secure a conviction with uncorroborated accomplice testimony. Were we to apply the new rule to the case at bar, we would in effect be holding that a conviction can be sustained based on what was at the time of trial legally insufficient evidence. Doing so would be to Respondent’s detriment, and ultimately unfair, because it would allow the State in this case to satisfy an evidentiary hurdle on appeal that it could not at trial. See Carmell, 529 U.S. at 530 (“Requiring only the victim’s testimony to convict, rather than the victim’s testimony plus 22 other corroborating evidence is surely ‘less testimony required to convict’ in any straightforward sense of those words.”).

Applying the new rule here would also be unfair to Respondent for another reason. We safely can assume that counsel prepared Respondent’s defense in reliance on the then- applicable accomplice corroboration rule. At trial, the defense focused exclusively on the lack of independent evidence corroborating the accomplices’ testimony. Had defense counsel known then that the rule might change post hoc, a different course, including the possibility of a plea bargain, likely would have been charted.

In short, to apply the new rule here would impose upon Respondent a twofold blow by (1) easing, after the fact, the quantum of evidence the State was required to present to secure a conviction while simultaneously (2) stripping Respondent of his only defense. Such action would “impinge upon [the] basic [principles of] fairness” that we are tasked with protecting. Lewis, 285 Md. at 713 ; see also Carmell, 529 U.S. at 546 (stating that “elements of unfairness and injustice” are “directly implicated by [retrospective application of] rules lowering the quantum of evidence required to convict . . . because they always make it easier to convict the accused”). We therefore apply the extant accomplice corroboration rule to Respondent’s case, and, as discussed above, affirm the judgment of the Court of Special Appeals overturning his conviction.

Judge McDonald, in his dissent, argues that we should apply the rule adopted today to Respondent’s case. State v. Jones, No. 52, Sept. 2018 Term, slip op. at 1 (McDonald, J., concurring in part and dissenting in part). He proffers two primary arguments to support his position, both of which we reject. 23 Judge McDonald first posits that the accomplice corroboration requirement is “essentially a rule of evidence.” Id. at 2. As he sees it, the rule “excludes certain evidence – i.e., accomplice-derived evidence – from consideration.

It is similar to a rule that excludes evidence from consideration if a foundation is not laid or if a constitutional or statutory right is violated.” Id. at 4; see also Carmell, 529 U.S. at 556 (Ginsburg, J., dissenting) (stating that a corroboration requirement is a “rule of evidence” that seeks “to rein in the admissibility of testimony [that] has [been] deemed insufficiently credible standing alone”). To Judge McDonald, applying a modified rule of evidence in this case is not unfair. See Jones, slip op. at 4-6 (McDonald, J., concurring in part and dissenting in part). Judge McDonald’s stance overlooks our explicit rejection of the notion that the accomplice corroboration rule is merely a rule of evidence that ultimately has no bearing on the sufficiency of evidence to sustain a conviction.

See Turner, 294 Md. at 646 (“The problem with the State’s analysis is that it confuses the admissibility of evidence with its sufficiency to serve as corroboration. Irrespective of whether [evidence] . . . is . . . admissible substantively . . . there must be corroboration of an accomplice’s testimony in order to constitute sufficient evidence