State v. Robertson

State of Maryland v. Harry Malik Robertson, No. 40, September Term 2018, Opinion by Hotten, J. CRIMINAL LAW – EVIDENCE – OPEN DOOR DOCTRINE – STANDARD OF REVIEW – The Court of Appeals held that the appropriate standard of review for the determination of whether a party has opened the door to otherwise inadmissible evidence is de novo because the open door doctrine is ultimately a question of law. The Court reviews the separate inquiry of whether a party’s rebuttal evidence is proportional for an abuse of discretion. CRIMINAL LAW – EVIDENCE – OPEN DOOR DOCTRINE – The Court of Appeals applied de novo review in its finding that defense counsel had opened the door for the State to introduce rebuttal evidence. Though the State was entitled to rebut the image of Robertson’s good character, the prosecution’s questioning exceeded the scope of the open door doctrine.

Circuit Court for Baltimore City Case No. 116111012 Argued: January 8, 2019 IN THE COURT OF APPEALS OF MARYLAND No. 40 September Term, 2018 __________________________________ STATE OF MARYLAND v. HARRY MALIK ROBERTSON __________________________________ Barbera, C.J., Greene, McDonald, Watts, Hotten, Getty, Wilner, Alan M. (Senior Judge, Specially Assigned) JJ. __________________________________ Opinion by Hotten, J. McDonald and Watts, JJ., dissent. __________________________________ Filed: April 2, 2019 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2019-04-04 11:20-04:00 Suzanne C. Johnson, Clerk Harry Malik Robertson (“Robertson”) was involved in an altercation at a residential area near Morgan State University. The incident culminated in the stabbing death of one of its participants. A jury in the Circuit Court for Baltimore City found Robertson guilty of accessory after the fact to murder, but acquitted him of first- and second-degree murder and of carrying a weapon openly with intent to injure.

On appeal, the Court of Special Appeals held that the trial court erred in permitting the State to question Robertson regarding his participation in a previous, unrelated incident during which a knife had been brandished (“previous incident”), because the door had not been opened for questioning by the State. The Court of Special Appeals also held that, because the introduction of the previous incident was not harmless error, Robertson’s conviction for accessory after the fact must be reversed and the case remanded for a new trial. On appeal, the State presents the following questions for our review: 1. What is the appropriate standard of review of a trial court’s ruling that a party has opened the door to otherwise inadmissible evidence? 2.

Applying the appropriate standard of review, did the [Court of Special Appeals] err by substituting its judgment for the trial court’s determination that [Robertson] had opened the door to otherwise inadmissible evidence? For reasons discussed infra, we find that application of whether particular evidence may be admitted based on the legal principle of “opening the door” is reviewed de novo. We further conclude that defense counsel opened the door, thereby enabling the State to question Robertson regarding the previous incident. However, despite the application of the open door doctrine, the State used the evidence of Robertson’s participation in the prior incident in a manner that exceeded the scope of the doctrine.

Accordingly, we shall affirm the judgment of the Court of Special Appeals. BACKGROUND 1. Factual Background On the evening of February 1, 2016, Robertson, then a student at Coppin State University, was involved in an altercation between two groups of men near the Morgan State University campus. The fight concluded after one of the participants, Gerald Williams (“the decedent”), was stabbed and ultimately died from his wounds.

The impetus for the fight began nearly a week earlier. Daequon Gordon, a Prince George’s Community College student, purchased ten dollars’ worth of marijuana from Brandon Parker, a Morgan State University student. Gordon purchased the marijuana with a counterfeit fifty-dollar bill and received the marijuana and forty dollars in return. When Parker learned that the fifty-dollar bill was counterfeit, he contacted Gordon and demanded his money back.

A meeting was arranged, and both Parker and Gordon showed up to the meeting with friends. Among them was the decedent, who was one of Gordon’s friends, and Robertson, who was one of Parker’s friends. The subsequent details were in dispute at trial. Gordon, testifying for the State, contended that when the two groups met that evening, he told Parker, “I got your money.

You’ll have to take it from me. I’m not paying you.” Gordon then punched Parker, provoking a larger fight among the group. As Robertson and others ran from the area, the decedent collapsed and Gordon, observing that the decedent was bleeding, called an ambulance. 2 Another State witness, Isaiah McClin, who fought as part of the decedent’s group, testified that “all hell broke loose” after the groups met, and though he did not recall who was fighting, he heard the decedent yell something during the fight, shortly after which the fight abruptly ended. Thereafter, McClin observed the decedent lying on the ground and “bleeding out.” Although McClin did not see the stabbing, or observe Respondent in possession of a weapon, he recalled Robertson and the decedent fighting at some point.

D’ana Glenn, another witness for the State, testified that she observed the altercation and never saw a large group fighting with each other. Rather, Glenn testified, only Robertson and the decedent were fighting. She stated that she saw the decedent charge towards Robertson, and Robertson, in an effort to “push forward toward him,” stabbed the decedent. Upon further examination, Glenn conceded that her view of Robertson was not “that clear” and that she only saw Robertson holding a knife after “[he] and the decedent ‘impact[ed].’” Robertson denied stabbing the decedent and further denied having a knife.

He contended that he fought two men during the fight: Mathew Agogo and McClin. Robertson also testified that he heard the decedent say “I’m bleeding.” Robertson testified that after the men dispersed, he told his cousin, Ron, who was also engaged in the fight, that they should leave. Robertson got into Ron’s car along with four of their friends. One of the friends was Abayomi Akinwold.

During the drive, Robertson testified that Akinwold was “beating himself up” and had blood on his hand and jacket. At one point, the car stopped, Akinwold exited, and tossed a knife into a storm drain. The car subsequently stopped at a friend’s home, which 3 Akinwold entered. When Akinwold returned to the car moments later, his hands were clean.

Ron drove the friends to their respective homes, leaving Robertson at his mother’s house. Following his arrest, Robertson was detained at the Baltimore Central Booking and Intake Center. James Alston, who was also detained at the facility on a probation violation, testified that Robertson admitted that he had killed someone during a fight. Alston denied receiving anything in exchange for his testimony, but admitted that his probation violation had been dropped prior to Robertson’s trial. 2.

Procedural Background Proceeding in the Circuit Court for Baltimore City At the beginning of the trial, Robertson faced charges of first-degree murder, second-degree murder, and carrying a dangerous weapon openly with intent to injure. At the end of Robertson’s case, at the suggestion of the court and with agreement from counsel, an accessory after the fact charge was added. The jury subsequently found Robertson guilty of accessory after the fact to murder, but acquitted him of the remaining charges. At trial, the following colloquy occurred between Robertson and his counsel during direct examination: [DEFENSE COUNSEL]: Now did you ever get into any trouble as a juvenile? [ROBERTSON]: No. [DEFENSE COUNSEL]: Ever just stopped for some minor issue? 4 [THE STATE]: Again Your Honor, I’m going to object to the leading nature of his questions.

THE COURT: Okay, I’m going to overrule that one. Go ahead. [DEFENSE COUNSEL]: Thank you. Any kind of trouble when you were a juvenile? [ROBERTSON]: No. [DEFENSE COUNSEL]: How about as an adult, when you turned 18? [ROBERTSON]: No. [DEFENSE COUNSEL]: Ever even arrested for anything? [ROBERTSON]: Never been arrested. This is my first time being arrested.

During cross-examination, the State inquired about Robertson’s participation in a previous, unrelated incident.1 Defense counsel objected, and a bench conference ensued.2 1 The previous incident was a fight which occurred a year before the incident at issue. Robertson, who was then attending Morgan State University, was punched by one of the university’s football players while on campus. Robertson struck back, prompting his friends and other football players to join. Carlos Mars, one of Robertson’s friends, noted that Robertson was being beaten to the ground.

Mars stood over Robertson, brandishing a knife to keep the football players away. Mars was charged, State of Maryland v. Carlos Mars, Circuit Court for Baltimore City, Case No. 115103008. Robertson was suspended from Morgan State, but no charges were brought against him. Robertson claims he opted to transfer to Coppin State during the time of his suspension so that he could resume his studies.

(“I refused to miss a year of college. So I transferred to Coppin State.”). 2 At the bench conference, defense counsel asserted that there was a Motion in limine for excluding Robertson’s involvement in the previous incident. The record contains a motion to suppress statements that Robertson may have made to law enforcement officials and a proffer agreement between Robertson, his counsel, and the State. However, the record does not contain a formal, written Motion in limine.

The trial transcript reveals that the hearing judge acknowledged the existence of a Motion in limine (see exchange provided below) and also acknowledged that defense counsel and 5 Based on defense counsel’s questioning during Robertson’s direct examination, the trial judge asserted that defense counsel had opened the door to enable the State to inquire about the previous incident. Proceeding before the Court of Special Appeals Robertson raised two issues on appeal: [1.] Whether the trial court erred in permitting the State to question him about his participation in an earlier fight during which a knife had been brandished. [2.] Whether the evidence was sufficient to support his conviction for accessory after the fact to murder. The Court of Special Appeals held that defense counsel had not opened the door for the State to introduce the previous knife incident because defense counsel had limited his questioning to Robertson’s criminal and juvenile record. Because defense counsel’s questioning was limited in scope, Robertson had “opened the door, at most, to being cross- examined . . . as to his claim that he had never been previously involved with the justice the State had previously agreed that Robertson’s involvement in the previous incident would not be mentioned at trial. [DEFENSE COUNSEL]: Your Honor, this is outrageous.

We have a Motion [in limine] that was - - THE COURT: Well I know, I know. But his testimony was - - [THE STATE]: He opened the door. THE COURT: --yeah, he opened the door. [THE STATE]: He said he had no trouble whatsoever. That’s why it was my first question. [DEFENSE COUNSEL]: Yes, but we talked about the knife incident that was not coming in at all.

THE COURT: I understand that. If -- you put your witness on and he testified. You asked him and he testified, he’s never been in trouble, he’s a good boy. 6 system, as either an adult or juvenile[.]” Robertson v. State of Maryland, No. 2731, slip op. at 8 (Md. App. June 6, 2018). The Court held that, because the introduction of the previous incident was not harmless error, Robertson’s conviction for accessory after the fact must be vacated and remanded for a new trial (“Given the similarity of the earlier incident . . . we cannot say, beyond a reasonable doubt, that the decision to permit inquiry about the previous incident was harmless error.”).

Id. at 11. Regarding the second issue, the Court held that Robertson had not preserved his insufficiency claim and declined to review the issue for plain error. STANDARD OF REVIEW A trial court’s ruling on the admissibility of evidence is generally reviewed for abuse of discretion. Hopkins v. State, 352 Md. 146, 158 , 721 A.2d 231, 237 (1998).

Errors of law and purely legal questions are reviewed de novo and this Court affords no deference to the decision of the court below. Schisler v. State, 394 Md. 519, 535 , 907 A.2d 175, 184 (2006). The discussion provided in Section III.A. below concludes that this Court should review the trial court’s ruling that defense counsel opened the door to otherwise inadmissible evidence de novo. DISCUSSION The open door doctrine is based on principles of fairness and serves to “balance any unfair prejudice one party may have suffered.” Little v. Schneider, 434 Md. 150, 163 , 73 A.3d 1074 , 1081 n.6 (2013).

It authorizes parties to “‘meet fire with fire,’ as they introduce otherwise inadmissible evidence [henceforth, “rebuttal evidence”] in response to evidence 7 put forth by the opposing side.” Id. at 157 , 73 A.3d at 1078 (citing Terry v. State, 332 Md. 329, 337 , 631 A.2d 424, 428 (1993)). The doctrine manifests the claim of, “[m]y opponent has injected an issue into the case, and I ought to be able to introduce evidence on that issue.” Clark v. State, 332 Md. 77, 85 , 629 A.2d 1239, 1243 (1993). A. The issue of whether defense counsel opened the door for the State to cross- examine Robertson about the previous incident is a legal question that we review de novo. 1. Questions of relevance, including the open door doctrine, are questions of law that are reviewed de novo.

The State contends that this Court should apply a bifurcated standard of review to the open door doctrine that first, reviews for clear error a trial court’s decision that a party has opened the door as to a new issue, and second, applies an abuse of discretion standard as to whether an opposing party’s rebuttal evidence is proportionate to the evidence presented. The State conflates the question of whether the open door doctrine applies with whether the rebuttal evidence is proportionate. These are two separate inquiries. The open door doctrine “authorizes admitting evidence which otherwise would have been irrelevant in order to respond to . . . admissible evidence which generates an issue.” Clark, 332 Md. at 84 , 629 A.2d at 1242 .

In short, the doctrine “makes relevant what was irrelevant[.]” Conyers v. State, 345 Md. 525, 546 , 693 A.2d 781, 790 (1997). Given the doctrine’s ability to enlarge the universe of relevant evidence at trial, the open door doctrine is a “rule of expanded relevancy[.]” Clark, 332 Md. at 84 , 629 A.2d at 1242 . Relevant evidence is evidence that makes a fact in issue more or less probable. Md. Rule 5-401.

Evidence that is not relevant is inadmissible. Md. Rule 5-402. The 8 determination of evidentiary relevance is a legal question that is reviewed de novo. Perry v. Asphalt & Concrete Services, Inc., 447 Md. 31, 48 , 133 A.3d 1143, 1153 (2016). “Although trial judges have wide discretion ‘in weighing relevancy in light of unfairness or efficiency considerations, trial judges do not have discretion to admit irrelevant evidence.’” Id.

(quoting State v. Simms, 420 Md. 705, 724 , 25 A.3d 144, 155 (2011)). Given that the open door doctrine is a matter of relevancy, which is a legal issue, this Court reviews the question of whether a party opened the door to introduce rebuttal evidence de novo. 2. The State’s citations to cases that use bifurcated review are inapposite to the case at bar. Though this Court has not waivered on the principle that legal issues are reviewed de novo, the State relies on two cases in its brief to suggest that the “articulated [ ] two-part standard of review of certain trial court decisions . . . should likewise apply here.” The State points to this Court’s decisions in Kusi v. State, 438 Md. 362 , 91 A.3d 1192 (2014), and Grimm v. State, 458 Md. 602 , 183 A.3d 167 (2018), to support its contention that the bifurcated standard of review used in those cases is appropriate in the case at bar.

However, the State neglects to consider that both Kusi and Grimm involved questions that were heavily reliant upon intensive fact-finding and credibility assessments—issues of fact that we review with deference. In Kusi, this Court held that the trial court did not commit clear error when it found that the defendant, a Ghanaian native whose native language was Ashanti, could comprehend English. 438 Md. at 384 , 91 A.3d at 1204 . Further, this Court held that the 9 trial court acted within its discretion when it denied an interpreter for the defendant at trial. Id. at 386 , 91 A.3d at 1205 .

The State contends that Kusi established precedent for a two- tiered standard of review that applies “a clearly erroneous standard to the judge’s factual findings before reviewing a judge’s legal determination under an abuse of discretion standard.” Id. at 383 , 91 A.3d at 1203 (internal citations omitted). However, the case at bar is distinct from Kusi. In Kusi, former Maryland Rule 16-819 provided express procedures for a trial judge’s determination of whether an interpreter was needed at trial. Id. at 366 , 91 A.3d at 1194 .

The rule required the trial judge to render factual findings about the defendant’s ability to understand and communicate in English, as well as the defendant’s ability to assist in his defense.3 Id. at 366-67 , 91 A.3d at 1194 . After a detailed 3 Former Md. Rule 16-819 provided the procedures to determine whether an interpreter was needed. Former Rule 16-819 stated, in pertinent part: (c) Procedures to determine the need for interpreters. *** (2) Spoken language interpreter. (A) Examination of party or witness.

To determine whether a spoken language interpreter is needed, the court, on request or on its own initiative, shall examine a party or witness on the record. The court shall appoint a spoken language interpreter if the court determines that: (i) the party does not understand English well enough to participate fully in the proceedings and to assist counsel, or (ii) the party or a witness does not speak English well enough to be understood by counsel, the court, and the jury. (B) Scope of examination. The court’s examination of the party or witness should include questions relating to: (i) identification; (ii) active vocabulary in vernacular English; and (iii) the court proceedings.

Kusi, 438 Md. at 366-67 , 91 A.3d at 1193 . 10 exchange with the defendant, the trial judge concluded that Kusi could effectively understand and communicate in English. Id. at 378 , 91 A.3d at 1200-01 . On appeal, this Court reviewed the trial judge’s factual findings concerning the defendant’s ability to speak and understand English for clear error. Id. at 383 , 91 A.3d at 1203 .

In commenting on the application of clear error review, this Court noted that “[t]he trial judge had an opportunity firsthand to hear [the defendant] speak English during the lengthy process[.]” Id. at 384 , 91 A.3d at 1204 . This Court further noted that application of the clear error standard was appropriate because “the trial judge in this case, as required by Rule 16-819, first made factual findings concerning [the defendant’s] ability to use the English language[.]” Id. at 383 , 91 A.3d at 1203 . Given the extensive fact-finding, it was appropriate to review the trial judge’s determination regarding the defendant’s English capacity for clear error. As opposed to the trial judge in Kusi, who engaged in fact-finding pursuant to former Rule 16-819, the trial judge in the instant case did not need to engage in exhaustive fact-finding to determine whether the open door doctrine applied.

In the case at bar, reviewing the trial transcript is sufficient for ascertaining whether the doctrine applied based on defense counsel’s questioning. Unlike Kusi, there was no fact-intensive inquiry that the trial judge engaged in that necessitates clear error review in the case at bar. In Kusi, this Court reviewed the trial court’s final determination, about whether an interpreter was needed, for an abuse of discretion. Id. at 367 , 91 A.3d at 1195 .

In contrast to the open door doctrine, which is a legal issue, the trial judge’s final determination of whether to appoint an interpreter for Kusi was a discretionary determination based on the 11 fact-finding that the judge had engaged in previously. See id. at 384 , 91 A.3d at 1204 (stating that “where a trial court makes a discretionary ruling, such as the determination of whether or not to appoint an interpreter, we apply an abuse of discretion standard of review.”). Therefore, the final determination by the judge in Kusi was discretionary, as opposed to the legal determination that the open door doctrine necessitates in the case at bar. In Grimm v. State, this Court reviewed a trial court’s determination that probable cause existed based on a dog’s alert to search Grimm’s car during a traffic stop. 458 Md. at 635 , 183 A.3d at 186-87 .

This Court held that the issue of the dog’s reliability was reviewed for clear error, but that the ultimate legal issue for determining whether probable cause existed was reviewed de novo. Id. at 650 , 183 A.3d at 195 . The Grimm Court cited Miller v. Fenton, 474 U.S. 104 (1985), stating that “where an issue falls somewhere between a clear legal issue and a simple historical fact, the determination of the nature of the issue turns on an analysis of which judicial actor is better positioned to decide the question.” Id. at 609, 183 A.3d at 171 . This Court determined that: An issue as to a drug detection dog’s reliability requires a trial court to assess the credibility of lay and expert witnesses; to watch, when available, a recording of a drug detection dog’s scan; to weigh and determine the weight to be given documentary evidence, such as the drug detection dog’s training records, field reports, and certifications; to consider the qualifications of any experts, and their opinions about the evidence; and to determine whether, under the totality of the circumstances, the drug detection dog is reliable; and whether the drug detection dog’s alert indicated that drugs were present.

As such, a trial court is better positioned than an appellate court to determine a drug detection dog’s reliability. 12 Id. The nature of the fact-finding at the trial level therefore warranted clear error review as to the dog’s reliability. In contrast, the trial judge in the instant case was no better positioned to decide the question of whether the open door doctrine applied: issues of reliability and credibility do not need to be considered for determining whether defense counsel’s questioning opened the door for the State’s introduction of the previous incident. In Grimm, this Court utilized a second standard of review for the ultimate issue of whether probable cause existed.

Id. at 650 , 183 A.3d at 195 . The Grimm Court was guided by the Supreme Court’s ruling that “the ultimate questions of reasonable suspicion and probable cause are to be reviewed de novo.” Id. at 640 , 183 A.3d at 189 (citing Ornelas v. United States, 517 U.S. 690, 691 , 116 S.Ct. 1657, 1659 (1996)). Importantly, this Court noted that, even when an issue involves a legal question, underlying facts may play a role. Id. at 651, 183 A.3d at 196 (citing Miller v. Fenton, 474 U.S. 104, 112 , 106 S.Ct. 445, 450 (1985)).

Regardless, the legal question is reviewed de novo by appellate courts. Id. at 607, 183 A.3d at 170 . In the instant case, the open door doctrine is a legal issue; however, the factual analysis required in Kusi and Grimm is absent. Therefore, we do not apply the dual standard that the State advocates to review the open door doctrine. 3.

An abuse of discretion analysis is applicable to the inquiry of proportionality, which is a separate question from whether the open door doctrine applies. The State cites to a third case, Little v. Schneider, 434 Md. 150 , 73 A.3d 1074 (2013), to support its contention that de novo review is inapplicable to the open door doctrine. In Little, we held that the trial court had not abused its discretion when it allowed rebuttal evidence that inquired about the defendant-physician’s lack of board certification. 13 Id. at 163 , 73 A.3d at 1081 . During the malpractice trial, defense counsel represented defendant as a model surgeon and expressed the defendant’s qualifications and achievements in detail.

Id. at 158 , 73 A.3d at 1078-79 . Despite the trial judge’s warning that such “unnecessary bolstering” might cause him to revisit the Motion in limine to exclude the doctor’s lack of board certification, defense counsel delved into the defendant’s accomplishments in detail during direct examination. Id. at 158-60 , 73 A.3d at 1079-80 . Due to the bolstering of the defendant’s accomplishments, the trial judge permitted plaintiff’s counsel to ask the defendant about board certification on redirect examination.

The judge explained his rationale for permitting the plaintiff’s rebuttal evidence, stating that “there is a balance here. So if you are going to puff up, they get to puff down.” Id. at 161 , 73 A.3d at 1080 . On review, we held that: The doctrine of opening the door has limitations. It allows for the introduction of otherwise inadmissible evidence, but only to the extent necessary to remove any unfair prejudice that might have ensued from the original evidence.

In this regard, [the defendant] argues that the trial court abused its discretion in allowing [the plaintiff] to improperly use the lack of board certification as evidence of negligence. Specifically, [the defendant] draws our attention to [the plaintiff’s] use of the board certification evidence on re-direct examination and in closing argument. We review both for abuse of discretion. Id. at 163-64 , 73 A.3d at 1082 (internal citations and quotations omitted).

Our review of the open door doctrine in Little did not contemplate whether the door had been opened for rebuttal evidence, but rather, we reviewed the proportionality of the rebuttal evidence permitted by the trial judge once the door had already been opened. This is a 14 separate inquiry that does not pertain to our standard of review for the preliminary question of whether the door has been opened for rebuttal evidence. As stated, this initial inquiry is a question of law that is reviewed by this Court de novo. The secondary question of proportionality is one in which this Court provides deference to a trial judge.

In Little, we determined that once the door had been opened, it was not an abuse of discretion for the trial judge to permit the plaintiff to inquire about the defendant’s lack of board certification. Id. at 163 , 73 A.3d at 1081 . Given that the issue before us seeks to resolve the standard of review for the open door doctrine, the State’s reference to Little is inapposite. We apply de novo review to questions of law, and the open door doctrine is a question of law that we review without deference to the trial judge.

B. In applying de novo review, we find that the door was open for the State to provide rebuttal evidence, but the State’s subsequent use of the evidence, reviewed for an abuse of discretion, exceeded the scope of the doctrine. At trial, the following colloquy occurred between Robertson and his