State v. Payton

Greene, J. Petitioner, the State of Maryland, asks this Court to determine whether a trial judge's decision to allow the State to reopen its case-in-chief to recall an expert witness, after the defense moved for judgment of acquittal, was a proper exercise of the trial judge's discretion. We shall hold that there may be circumstances when a trial judge in the exercise of his or her discretion may allow the State to reopen its case-in-chief after the prosecutor has rested. In the present case, however, the trial judge abused that discretion. The trial judge impermissibly weighed the nature of the charges pending against Respondent Brandon Payton ("Mr. Payton" or "Respondent") as a factor in his decision to permit the reopening of the State's case-in-chief.

In addition, the judge impermissibly exceeded the bounds of judicial impartiality when he instructed the State to clarify a gap that the trial judge perceived in the State's case. Finally, pursuant to this Court's established guidelines, it was inappropriate for the trial judge to exercise his discretion to allow the State to reopen its case-in-chief, rather than rule on Respondent's motion for judgment of acquittal, where the trial judge had determined that there was insufficient relevant evidence presented to sustain a conviction. The trial judge's decision compromised Respondent's right to a fair trial. Therefore, we conclude that Respondent is entitled to a new trial.

FACTUAL & PROCEDURAL BACKGROUND Mr. Payton was tried for murder and related charges before a jury in the Circuit Court for Baltimore City in September 2016. 1 The charges resulted from an incident on June 12, 2015, during which the victim died from multiple gunshot wounds. A witness to the shooting, Christopher Brinker, testified that he believed that the shooter's hand touched the hood of his vehicle when the shooter passed by in pursuit of the victim. The handprint became a key part of the State's case against Mr. Payton. Also among the State's witnesses was Sean Dorr, a certified latent print examiner employed by the Baltimore City Police Department, who testified as an expert witness.

Mr. Dorr explained that there were three lift cards of the alleged shooter's latent print 2 taken from the hood of Mr. Brinker's car. One lift card was suitable for comparison. Mr. Dorr scanned this lift card into the Automated Fingerprint Identification System ("AFIS"). 3 The AFIS compared the lift card to its database and produced a candidate list. 4 Mr. Dorr manually compared the candidates' prints to the unknown latent print to determine if one was an exact match. Ultimately, Mr. Dorr testified that he identified the latent print "as an impression of the left palm of Brandon Payton, State Identification Number ("SID number") 2476078." 5 Mr. Dorr also stated that on August 9, 2016 he took Mr. Payton's fingerprints and made fingerprint cards.

Mr. Dorr testified that he did not compare the August 9 prints to the prints from the AFIS; however, he verified that the August 9 prints were associated with Mr. Payton's SID number. At this point, defense counsel objected. Outside the presence of the jury, defense counsel and the trial judge told the prosecutor that they were confused. The judge assumed that the State was trying connect the August 9 print to the print pulled from the AFIS, and connect the print from the AFIS to the unknown latent print.

The judge, however, noted the gap in this logic, stating, "that's not what [Mr. Dorr] testified to." The trial judge instructed the prosecutor to "go back" and "be as clear as you possibly can as to what [was] compared." Subsequently, the prosecutor continued questioning Mr. Dorr. Mr. Dorr explained that he had "known prints" from the AFIS, which were for SID number 2476078. Mr. Dorr said that he established that the prints he took from Mr. Payton on August 9 were for SID number 2476078. After the State rested its case, Mr. Payton's counsel moved for judgment of acquittal without particularizing how the State had not proven its case.

The trial judge asked the State when, if ever, it connected the unknown latent print to Mr. Payton. The State offered an explanation, and portions of Mr. Dorr's testimony were replayed. The trial judge remained unpersuaded that the State had connected the unknown latent print to Mr. Payton and, therefore, was convinced that the State had failed to place Mr. Payton at the scene of the crime. 6 The trial judge explained, "if I am confused ... are [the members of the jury] confused? I mean, right now I have to get past this for my own satisfaction to rule in your favor ... but I'm just totally at sea as to what [the State had] proven in this case." He went on to say: THE COURT: I am more than frustrated.

Right this minute I don't think you've made your case. So my question is, do I simply grant the motion to dismiss which I could easily do based on what I have heard of this testimony, because you have not convinced me that [Mr. Payton], that you have put this man at the scene of this crime. Now, if you want me to allow you to reopen your case to call your expert back in - and [Mr. Payton's counsel] I'm sure is going to object to that - and ask that question, in your judgment, to a reasonable degree of certainty, is the print that was taken off of that car Mr. Brandon Payton's print, if you want to call your witness back for five minutes of testimony with whatever cross-examination, I am going to permit that, because I think justice needs to be done and I - generally speaking, I am generally speaking, not inclined to punish clients - in your case, the public is your client - for something that a lawyer may or may not have done. But I don't think you've made your case at this moment.

I'm going to permit you to do that. And [Mr. Payton's counsel], you're going to object, I'm assuming? Mr. Payton's counsel said she was "absolutely" objecting. The court "d[idn't] blame" Mr. Payton's counsel for challenging the reopening, but the court persisted, explaining to the State: THE COURT: I'm going to let you reopen your case Friday morning for brief testimony to fill in the gap in your case - THE STATE: Yes, your Honor.

THE COURT: Because I think you intended to do it and I don't think you did it, and the fact that you can't point me to right now - I mean, I've listened to what you're talking about here and it is not convincing me at all. I think you got lost in the weeds, quite frankly. And so, I'm going to let you do it, but you know, right this minute, I'm not seeing it. You're not convincing me that you've made your case because you haven't put this man on the scene of the crime.

And - THE STATE: Yes, your Honor. THE COURT: Again, if you can't do it on Friday, that's fine, then I will grant the motion. THE STATE: Yes, your Honor. THE COURT: So you have, you have - and I don't want to go on for an hour and a half of testimony on Friday.

You've already laid the groundwork. You just simply didn't ask the punch line question which to me was, is this the print of this man [Mr. Payton]. Again, Mr. Payton's counsel objected. Counsel reasoned that recalling Mr. Dorr would be the last thing the jury heard, and it would be in isolation to other evidence presented.

The trial court responded: THE COURT: I understand your point, but I - you know, and I'm not crazy about the notion, but as I said, if this were a lesser crime than a murder, I might not be so generous. It is a murder and I think Mr. Payton is - deserves a fair trial and I've tried to do it and the State deserves a fair trial and I'm trying to do that. So I'm trying to balance these competing needs. And it may very well be that if he's convicted, you'll have grounds for appeal.

I don't know. But at this point, I'm going to let this - I'm going to let you re-call your witness for a very brief period of time for that one purpose. Two days later, Mr. Payton's counsel objected again to Mr. Dorr re-testifying. Mr. Payton's counsel stated: MR.

PAYTON'S COUNSEL: I'm objecting to this entire testimony with [Mr.] Dorr being allowed to come back and testify. This is extremely prejudicial. This - we took a break yesterday .... This, this rings loud and clear.

This is the crucial key piece of evidence. This is the only evidence linking Mr. Payton and this is the last thing and ... in isolation that the jury's [going to] hear, and this is extremely prejudicial. It's unfair, and I'm asking the Court not to allow the State to reopen its case and have [Mr.] Dorr re-testify to this prejudicial piece of evidence at this point, the way it's presented right now in isolation. The trial court, however, overruled the objection: THE COURT: I think I have made clear that if this were a simple drug possession case, I might, in fact, not be allowing this.

But this is a murder case. It's an execution-style murder case. I think there is a strong public interest in having definitive resolution of cases involving crimes as serious as this one. And there - although there may very well be some prejudice, I'm not sure, about doing this in isolation or not, but I understand the point [Mr. Payton's counsel is] making.

I feel in this case though that the public interest is sufficiently strong and the possible prejudice is sufficiently speculative that I think it's - I'm going to permit it. But - I'm going to permit it. The State recalled Mr. Dorr to the witness stand and sought to assuage the trial judge's confusion by connecting the fingerprint evidence to Respondent's SID number. Mr. Dorr testified that the unknown lift card was identified as the left palm of Mr. Payton, SID number 2476078.

He also testified that he took Mr. Payton's fingerprints on August 9, 2016, and he ascertained that the SID number associated with Mr. Payton is 2476078. Mr. Dorr went on to explain that matching prints are designated to have the same SID number, but each print has a different transaction number. The State of Maryland's AFIS only knows Mr. Payton as having one SID number. After Mr. Payton's attorney cross-examined Mr. Dorr, the State again rested its case.

Mr. Payton moved for judgment of acquittal, which the trial judge denied. Without offering any evidence, Mr. Payton rested his case. Then, Mr. Payton renewed his motion for judgment of acquittal. The trial court denied the renewed motion.

The case proceeded to closing arguments, after which the trial judge sent the case to the jury for deliberations. The jury convicted Mr. Payton. 7 Mr. Payton appealed his conviction to the Court of Special Appeals. Payton v. State , 235 Md. App. 524 , 178 A.3d 633 (2018). The intermediate appellate court held that, in this case, the trial court abused its discretion when it reopened the State's case.

Id. at 537 , 178 A.3d at 641 . The court determined that Mr. Payton properly challenged the trial court's decision, so it was preserved for appellate review. Id. at 531 n. 4, 178 A.3d at 637 n. 4. Reaching the merits of the trial court's decision, the intermediate appellate court explained that, rather than ruling on Mr. Payton's motion for judgment of acquittal, "the trial court elected to sua sponte reopen the case for further testimony, and advised the State on how to avoid a judgment of acquittal." Id. at 537 , 178 A.3d at 641 .

The Court of Special Appeals determined that the evidence was important. Id. Moreover, the evidence was highlighted for the jury by being the last thing the jury heard. Id.

The Court of Special Appeals held that "where the trial court was on the precipice of granting an acquittal, the [trial] court abused its discretion by abandoning its position of impartiality and sua sponte reopening the State's case to correct a perceived defect." Id. In closing, the intermediate appellate court clarified that its opinion should not be construed "as a per se rule prohibiting the trial court from sua sponte reopening the evidence in a jury trial. Such a decision ... should be made cautiously and with a vigilant eye to ensure that the court does not cross the line of impartiality." Id. at 538 , 178 A.3d at 641 . Ultimately, the Court of Special Appeals vacated the trial court's judgment and remanded the case for a new trial.

Id. at 540 , 178 A.3d at 642 . The State timely petitioned this Court for a writ of certiorari, which we granted. State v. Payton , 459 Md. 170 , 185 A.3d 63 (2018). Reframed for clarity, the issue presented in this case is: Did the trial court abuse its discretion when it reopened the State's case to hear additional testimony, before ruling on the Defendant's motion for judgment of acquittal? 8 DISCUSSION Parties' Arguments First, Petitioner argues that the Court of Special Appeals erred in concluding that Respondent's claim of lack of judicial impartiality was preserved for appellate review.

Petitioner posits that the issue was not plainly raised before the trial court. Next, Petitioner claims that, even if the issue were preserved for appeal, the trial court's decision to allow the State to reopen its case-in-chief fell within the trial court's broad discretion. Lastly, Petitioner contends that any evidence received on reopening was cumulative. As such, Petitioner claims that any error was harmless beyond a reasonable doubt.

Respondent asserts that his claim of lack of judicial impartiality was preserved for appeal because Respondent objected to the trial judge's entire procedure of permitting the State's to reopen its case. Even if the issue were not preserved, Respondent argues that this Court should exercise its discretion to review Respondent's claim of lack of judicial impartiality. Furthermore, Respondent maintains that trial courts do not have discretion to act on their own initiative to allow reopening of the State's case. If trial courts do have such discretion, Respondent argues that the trial court, in this case, abused that discretion.

Finally, Respondent argues that when a trial judge departs from a position of neutrality, such an error can never be considered harmless. Alternatively, Respondent contends that if this Court utilizes the harmless error framework, the error here cannot be harmless because the trial court, at a minimum, unfairly permitted the State to reopen its case to emphasize certain evidence. Preservation Before we reach the merits of the case, we first address the preservation issue. Petitioner preemptively argues that Respondent's claim of lack of judicial impartiality was not preserved for appellate review.

Relying on Diggs v. State , 409 Md. 260 , 973 A.2d 796 (2009), Petitioner asserts that Respondent failed to lodge an objection on the grounds of lack of judicial impartiality. Further, Petitioner contends that, because Respondent voiced such specific objections to the State's case being reopened, the objections did not alert the trial judge that his impartiality was at issue. Respondent counters that he effectively objected to the trial court's procedure. Alternatively, if the matter were not preserved, Respondent contends that this Court should exercise its discretion to review Respondent's claim of lack of judicial impartiality.

The Court of Special Appeals concluded that Respondent's argument was preserved for appellate review. Payton , 235 Md. App. at 531 n. 4, 178 A.3d at 637 n.4. We agree. Maryland Rule 8-131(a) governs preservation.

It provides that, ordinarily, an appellate court will not review an "issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal." In the present case, the objection plainly appeared in the record. In Diggs , the defense attorneys, on behalf of their clients, claimed that the trial judge was impartial, even though, "[i]n nearly every instance of alleged judicial misconduct, neither [defense attorney] objected." 409 Md. at 283 -87 , 973 A.2d at 809-12 (invoking the "plain error" doctrine to reach the defendants' claims of lack of judicial impartiality). Before concluding, we advised that the onus is on defense counsel to object in order to preserve an issue for review. Id. at 294 , 973 A.2d at 816 .

Failure to object, we cautioned, will only be countenanced when a trial judge "exhibits repeated and egregious behavior of partiality, reflective of bias." Id. Here, unlike in Diggs , Respondent made objections to the trial court's action. Respondent objected when the trial judge initially instructed the State to reopen its case and also two days later, just before Mr. Dorr testified for the second time. Respondent pointed out that the trial judge's decision was "unfair" and "extremely prejudicial." Urging the court to reconsider its decision, Respondent clearly asked the court "not to allow the State to reopen its case and have [Mr.] Dorr re-testify." Perhaps most telling, the trial court recognized the ramifications of its decision.

Specifically, the trial judge invited Respondent to object and "d[idn't] blame" Respondent for challenging the reopening. The trial judge expressed his concern that he was "not crazy about the notion," and he was "very sympathetic" toward Respondent's position. The trial judge even acknowledged that Respondent "may very well ... have grounds for appeal." Under these circumstances, the trial court had ample opportunity to correct any mistakes in its ruling. See Bible v. State , 411 Md. 138 , 149-52, 982 A.2d 348 , 354-56 (2009) (citations omitted) (explaining that the purpose of the preservation rule is to prevent parties from "sandbagging" the trial judge, along with promoting fairness and judicial economy).

Thus, we reject Petitioner's preservation argument and reach the merits of the trial judge's decision to reopen the State's case. 9 Reopening the State's Case-in-Chief Petitioner argues that the trial court's decision to reopen the State's case to recall Mr. Dorr was appropriate. Petitioner contends that the presiding judge properly exercised his discretion to allow the State to reopen its case pursuant to State v. Booze , 334 Md. 64 , 637 A.2d 1214 (1994). Additionally, Petitioner claims that because the trial judge misperceived a defect in the State's case there can be no prejudice to Respondent. Respondent contends that trial courts do not have the authority to sua sponte allow reopening the State's case.

If trial courts do have such discretion, Respondent argues that the trial court abused its discretion in this case because it assumed the role of prosecutor. Also, Respondent contends that State v. Booze , when properly considered, does not support the trial court's decision to permit the State to reopen its case. In the present case, Mr. Payton moved for judgment of acquittal. The trial judge did not rule on Mr. Payton's motion, even though he was convinced that the State had not met its burden.

Instead of ruling on the motion, the trial judge, on his own initiative, allowed the State to reopen its case-in-chief so that Mr. Dorr could re-testify. Determining the propriety of the trial judge's action requires that we analyze the rules pertinent to this juncture of a trial. Motion for Judgment of Acquittal Under Maryland Rule 4-324, a criminal defendant may move for judgment of acquittal at the close of the State's case-in-chief. The defense may renew its motion for judgment of acquittal at the conclusion of all the evidence in the case.

Upon consideration of the defendant's motion, the trial court must assess the legal sufficiency of the State's evidence. State v. Taylor , 371 Md. 617 , 651, 810 A.2d 964 , 984 (2002) (citing Brooks v. State , 299 Md. 146 , 150, 472 A.2d 981 , 983 (1984) ). Whether the State's evidence is legally sufficient does not amount to a determination of whether the State has proven its case beyond a reasonable doubt. Id.

Rather, the trial court must weigh whether the State's evidence is legally sufficient to sustain a conviction. Id. If the trial court finds the evidence legally sufficient, it should deny the defendant's motion. Id.

The trial court's decision to deny the defendant's motion is reviewable, but appellate review is limited. Morgan v. State , 134 Md. App. 113 , 126, 759 A.2d 306 , 312-13 (2000). The reviewing court "merely ascertains whether there is any relevant evidence, properly before the jury, legally sufficient to sustain a conviction." Id. (citation omitted).

On the other hand, if the trial judge does not find evidence that is legally sufficient to sustain a conviction, the judge must grant the motion for judgment of acquittal. Taylor , 371 Md. at 651 , 810 A.2d at 984 . Granting the defendant's motion has the same force and effect as the fact finder rendering a verdict of not guilty. Id. at 651 , 810 A.2d at 983 ; Pugh v. State , 271 Md. 701 , 705, 319 A.2d 542 , 544 (1974) (quoting State v. Shields , 49 Md. 301 , 303 (1878) ); Brooks , 299 Md. at 150 -51 , 472 A.2d at 983 -84 .

Succinctly, the granting of a motion for judgment of acquittal, ordinarily, is not subject to an appeal. Protecting the Defendant's Right to a Fair Trial Although there are general rules for the order in which evidence is presented to a jury, the customary order of proof may yield to the circumstances of a trial. State v. Hepple , 279 Md. 265 , 270-71, 368 A.2d 445 , 449 (1977). For instance, the customary order in which evidence is presented to the jury may differ when the State's case-in-chief is reopened after the State has rested.

Id. at 271 , 368 A.2d at 449 . It is well settled that when deciding whether to allow the State to reopen its case, the trial court must ensure that reopening the State's case does not "impair[ ] the ability of the defendant to answer and otherwise receive a fair trial." Booze , 334 Md. at 76 , 637 A.2d at 1220 . We have identified several factors relevant to that inquiry. Id. at 74-77 , 637 A.2d at 1219 -20 .

The factors pertain to the reason for the timing of the evidence, the nature of the evidence, and the effect of belatedly admitting the evidence. Id. at 74-76 , 637 A.2d at 1219 -20 . Additionally, we have cautioned that trial courts should be reluctant to exercise their discretion to permit the State to reopen its case-in-chief and should only do so under extraordinary circumstances. Id. at 70 , 637 A.2d at 1217 (explaining that trial courts should be reluctant to grant reopenings because it is desirable to conduct orderly trials and there is danger that the trier of fact will unduly emphasize evidence offered upon reopening) (citations omitted).

We do, however, afford deference to the trial court's determination of whether the circumstances warrant reopening the State's case. A reviewing court will only disturb such a decision if the trial court abused its discretion. See Id. at 79 , 637 A.2d at 1221 (holding that the trial court abused its discretion in permitting the State to reopen its case to receive testimony from a previously unavailable witness); Wisneski v. State , 169 Md. App. 527 , 905 A.2d 385 (2006) (deciding that the trial court did not abuse its discretion in letting the State reopen its case to introduce a stipulation into evidence); Cason v. State , 140 Md. App. 379 , 780 A.2d 466 (2001) (determining that the suppression hearing judge did not abuse his discretion in having the State reopen its case to receive tangible evidence that had been referenced during trial). An appellate court's review must, likewise, inquire into whether the trial court's decision has impaired the defendant's right to a fair trial.

Collins v. State , 373 Md. 130 , 142, 816 A.2d 919 , 925 (2003) (stating that a trial court's decision to permit the State to reopen its case "will not constitute an abuse of discretion so long as [it] does not impair the ability of the defendant to answer and otherwise receive a fair trial.") (citation omitted) (internal quotation marks omitted). Contrary to Respondent's suggestion, this Court has never imposed a hard and fast rule that trial courts lack authority to, sua sponte , allow the State's case-in-chief to be reopened. Indeed, this Court has recognized that trial courts have discretion to invoke their authority to allow the State to reopen its case. Hepple , 279 Md. at 273 , 368 A.2d at 450 ("The fact that the prosecution made no motion to reopen ... is not dispositive, of course, since the court could have invoked its discretionary power sua sponte.").

We adhere to that same principle today. As our jurisprudence makes clear, the trial court's discretion is broad, though not unlimited. Booze , 334 Md. at 68 , 637 A.2d at 1216 . The trial court's discretion to allow the State to reopen its case is limited by the defendant's ability to answer and receive a fair trial.

Id. at 69 , 637 A.2d at 1216 . This determination is made with reference to the evidence's nature and probable effect, and the reason for its delay. Id. at 76 , 637 A.2d at 1220 . This standard, however, is not the only safeguard this Court has afforded a criminal defendant to ensure a fair trial.

Criminal defendants have the right to a fair, yet not a perfect, trial. Crawford v. State , 285 Md. 431 , 451, 404 A.2d 244 , 254 (1979). "It is well settled in Maryland that fundamental to a defendant's right to a fair trial is an impartial and disinterested judge." Jefferson-El v. State , 330 Md. 99 , 105, 622 A.2d 737 , 740 (1993). The right to an impartial and disinterested judge includes the right to a judge with the appearance of being impartial and disinterested.

Jackson v. State , 364 Md. 192 , 207, 772 A.2d 273 , 281 (2001). Thus, when deciding whether to reopen the State's case-in-chief to receive additional evidence, another safeguard of the defendant's right to answer and receive a fair trial is an impartial and disinterested judge. We have had occasion to address the trial judge's duty to exhibit impartiality. For example, in Abdul-Maleek v. State , we considered whether a trial court impermissibly based a defendant's sentence on the fact that he exercised his right to a trial de novo . 426 Md. 59 , 43 A.3d 383 (2012).

We acknowledged that the trial court relied on several permissible factors in rendering its sentence. Id. at 73 , 43 A.3d at 391 . The trial court also mentioned the defendant's exercise of his right to an appeal de novo . Id.

A majority of this Court determined that, under the circumstances, the trial court did not actually consider the defendant's exercise of the right to appeal to then impose a more severe sentence. Id. Yet, the majority was "constrained nonetheless