Tibbs v. State

GILBERT, Chief Judge. Preface But for the fact that the evidence against Mark Tibbs was overwhelming, despite the assistant State’s attorney’s efforts to snatch defeat from the jaws of victory, we would reverse this case and remand it for a new trial. Our review of the record, however, convinces us that the prosecutor’s misdirected zeal did not deny Tibbs due process of law. The Facts David Lester was murdered on Lexington Street in Baltimore City following an attempted robbery of his store.

Two men were seen chasing Lester across the street. Shots were heard, and the men then ran West on Lexington Street. At some point they met up with their “lookout” man. The men ran into a high-rise apartment project on West Fayette Street, where they hid the murder weapon.

After they had gained entry into an apartment, Tibbs admitted to the others that “he shot the man.” Shortly thereafter, the police arrived at the apartment, determining that the men fit the descriptions of the assailants. Tibbs and the others were arrested. 1 Tibbs was charged with first degree murder, attempted robbery with a deadly weapon, conspiracy to rob, and ²⁴⁵ certain handgun violations. He was tried by a jury in the Circuit Court for Baltimore City and found guilty of all charges. After a motion for a new trial was denied, Tibbs was sentenced to life imprisonment plus additional* consecutive terms totaling sixty years.

As the preface implies, the thrust of this appeal is the misconduct, vel non, of the assistant State’s attorney. The transcript is replete with motions for mistrial based on allegations of prosecutorial misconduct. The trial judge continually admonished the prosecutor to cease attempts to introduce improper evidence. At one point in time the judge threatened to cite the assistant State’s attorney for contempt if the court’s guidelines were further ignored.

The Issues In this Court, Tibbs raises a pentad of reasons why he believes the judgments of the circuit court should be reversed. We shall discuss each of Tibbs’s five issues in the order in which he has posed them, adding whatever additional facts are necessary. I “The trial court committed reversible error when it overruled appellant’s objection to a State’s witnesses] testimony about the substance of a conversation with the appellant regarding appellant’s consultation with his attorney?” Over defense counsel’s objection, James Roscoe, an accomplice, was permitted to testify to a conversation he had with Tibbs while the two were in the Baltimore City Jail. The record discloses: [Assistant State’s Attorney]: Mr. Roscoe, tell us, what other conversations you had at Baltimore City Jail with Mr. Tibbs? [Defense Counsel]: Objection. ²⁴⁶ The Court: Relative to this offense, overruled.

The Witness: When he came back off of attorney visits— [Defense Counsel]: I am going to object to this, Your Honor. * The Court: Overruled. The Witness: He came back off of attorney visits one day and told me that things was looking bad for him. (Emphasis added.) Tibbs argues that the admission of that testimony constitutes reversible error because the evidence was “irrelevant, immaterial, and hearsay.” The statement attributed to Tibbs is clearly hearsay. Since it is hearsay, is it, nevertheless, admissible as one of the diverse exceptions to the hearsay rule?

There are only two exceptions, if any, into which the statement attributed to Tibbs fits: 1) a declaration against interest or 2) an admission. This Court in Muir v. State, 64 Md.App. 648 , 498 A.2d 666 (1983), aff'd 308 Md. 208 , 517 A.2d 1105 (1986), commented: “As a general rule when a person makes an out-of-court declaration which is against his or her penal interest, that declaration, even though hearsay, is admissible into evidence as an exception to the hearsay rule if the person is unavailable for trial.” The statement does not fall within the declaration against interest exception to the hearsay rule because that exception requires that the declarant be unavailable for cross-examination because of death, insanity, etc. Muir v. State, 64 Md.App. at 656 , 498 A.2d 666 . Patently, Tibbs was available at trial; hence, the exception is inapplicable. “Admissions,” the Court of Appeals said in Aetna Casualty & Surety v. Kuhl, 296 Md. 446 , 463 A.2d 822 (1983), “are ‘the words or acts of a party-opponent ... offered as evidence against him.’ McCormick § 262, at 628. Admissions are considered to be substantive evidence of the facts admitted.

Smith v. Branscome, 251 Md. 582 , 248 ²⁴⁷ A.2d 455 (1968); Terry v. O’Neal, 194 Md. 680 , 72 A.2d 26 (1950); Lambros v. Coolahan, 185 Md. 463 , 45 A.2d 96 (1945); Kirk & Sons v. Garrett, 84 Md. 383 , 35 A. 1089 (1896); Maurice v. Worden, 54 Md. 233 (1880).” The Kuhl Court further stated, “[A] party may offer into evidence against his opponent anything said by him as long as it illustrates some inconsistency with the facts now asserted by the opponent in pleading or testimony. Wig-more, § 1048.” The statement “He [Tibbs] came back off of [sic] attorney visits [sic] one day and told me that things was [sic] looking bad for him” is not an admission. It does not illustrate any inconsistency with facts asserted by the defendant. A reading of the statement reveals that Tibbs did no more than express his opinion of the strength of his case.

Tibbs’s statement to Roscoe was hearsay. It was not within any exception to the rule; its admission was error. The error notwithstanding, it does not necessarily follow that the case must be reversed. Dorsey v. State, 276 Md. 638 , 350 A.2d 665 (1976).

Tibbs avers that the judge should have been alerted by the witness’s testimony relative to an “attorney visit.” Proceeding from that premise, Tibbs concludes that the “alert” should have forewarned the judge that there was a “great possibility that improper evidence [would be] uttered.” There is, as yet, no requirement that trial judges be clairvoyant. In our view, the words “attorney visit” are neither per se excludable nor should they have alerted the judge that the ensuing evidence would be inadmissible. Furthermore, in the case at bar, the trial judge belatedly recognized the inadmissibility of the evidence, and he offered a curative instruction to that effect. Defense counsel, however, declined the offer.

Whatever prejudice, if any, that may have been caused the appellant by the improper evidence could have ²⁴⁸ been mitigated, if not eradicated, by the court’s giving the jury a curative instruction. Brooks v. State, 68 Md.App. 604 , 515 A.2d 225 (1986). That solution was shunned by Tibbs. Although, as we have said, Tibbs’s statement to Roscoe should not have been admitted into evidence, the error was harmless beyond a reasonable doubt in light of the otherwise overwhelming evidence of Tibbs’s guilt. 2 Specifically, Joseph Roscoe, appellant’s accomplice and co-conspirator, testified that appellant admitted shooting David Lester during the attempted robbery of the store.

An eyewitness identified Tibbs and his cohorts as having been the persons observed fleeing the scene of the crime. That evidence corroborated Roscoe’s testimony. 3 Viewed as a whole, the properly admitted evidence in the case “so outweighs the prejudicial nature of the evidence erroneously admitted that that there is no reasonable possibility that the decision of the finder of fact would have been different had the tainted evidence been excluded.” Brooks v. State, 299 Md. 146 , 472 A.2d 981 (1984), quoting Ross v. State, 276 Md. 664 , 350 A.2d 680 (1976) (emphasis added by Brooks). In light of the fact that the error in admitting the hearsay was harmless, there is no need to discuss its relevance or materiality. II “The trial court erred in denying appellant’s motion for mistrial when evidence regarding a conversation appellant had with his attorney was disclosed to the jury through the testimony of an accomplice.” ²⁴⁹ After the “looking bad” testimony discussed in issue I came into evidence, the trial court, as we have said, offered to give the jury a curative instruction.

Defense counsel declined the offer and moved for a mistrial. Counsel argued that his client was being denied effective assistance of counsel because the jury could infer that it was Tibbs’s attorney who said things “looked bad”; and, hence, defense counsel would not be able to “stand up in front of this jury and tell the jury it doesn’t look bad for [his] client.” Tibbs’s statement to Roscoe was susceptible of more than one inference. Although it may have been possible for the jury to infer that the statement originated with Tibbs’s attorney, the jury could also have inferred that the statement was Tibbs’s personal opinion and his own evaluation of the case. Nothing in the statement refers to or implies that it was made by defense counsel.

In the circumstances of the matter sub judice, there was no clear prejudice to the defendant shown since the witness did not state that it was Tibbs’s counsel who expressed doubt as to the strength of Tibbs’s defense. The decision of whether to grant a mistrial is vested in the discretion of the trial judge and will not be disturbed on appeal unless there was clear prejudice to the defendant. Russell v. State, 69 Md.App. 554 , 518 A.2d 1081 (1987). Moreover, a mistrial will only be granted under extraordinary circumstances and where there is manifest necessity to do so.

Id. Ill “The prosecutor’s repeated misconduct at trial through improper comment and questioning and certain trial court rulings which were the result of that misconduct were so prejudicial that appellant was denied a fair trial and Due Process of law.” Tibbs points to eight instances of alleged prosecutorial misconduct that, he asseverates, individually and collective ²⁵⁰ ly, denied him a fair trial and Due Process.. We shall discuss each of those eight happenings. First, appellant complains that during opening statement the prosecutor repeatedly made improper comments, including discussing aspects of armed robbery, conspiracy, and felony murder, and related her opinion as to why Tibbs and his companions were perspiring when they were located by the police.

Tibbs’s view to the contrary, the comments were within the reasonable scope of opening statement. The purpose of an opening statement is to apprise the fact finders of what the State or the defense expect the evidence to show. Wilhelm v. State, 272 Md. 404 , 326 A.2d 707 (1974). The statement “is not evidence and generally has no binding force or effect.” Id. at 412 , 326 A.2d 707 .

To obtain a reversal based on opening statement by the State, the accused must show “bad faith on the part of the prosecutor in the statement of what the prosecutor expects to prove or establish substantial prejudice resulting therefrom.” Id., citing Clarke v. State, 238 Md. 11 , 207 A.2d 456 (1965); Ott v. State, 11 Md.App. 259 , 273 A.2d 630 , cert. denied, 262 Md. 748 (1971). There is no evidence in the instant case of “bad faith” or “substantial prejudice resulting therefrom.” Second, at a hearing prior to trial, the prosecutor sought to establish the chain of custody of the victim’s body. Defense counsel indicated that he would stipulate to the chain of custody in order to avoid an emotional scene by the family members, which counsel believed would be prejudicial to the defendant. Tibbs makes much ado about nothing.

The judge prevented the testimony from ever reaching the jury. Consequently, there was no issue of prejudice to which the evidence of bad faith would be relevant. Hence, the matter is not before this Court. Md. Rule 1085; Ball v. State, 57 Md.App. 338 , 470 A.2d 361 (1984).

Third, during trial the following incidents occurred: ²⁵¹ (1) The prosecutor improperly questioned a State’s witness regarding testimony at the prior trial of a codefendant. Defense counsel objected, and the court sustained the objection before the witness answered. The judge admonished the prosecutor and once again offered to give the jury a curative instruction, which defense counsel declined. (2) The prosecutor endeavored to have a witness describe the clothes Tibbs wore on the day of the incident.

During cross-examination the witness indicated that the only reason she could identify the clothes Tibbs wore was because prior to trial she had seen color photographs which had been taken of him. Defense counsel objected to the witness’s photospread identification because that photospread had not been disclosed to him before trial. He asserted that he was ill prepared to challenge the evidence. The trial court struck the witness’s reference to appellant’s clothing, but the judge left intact her identification of Tibbs.

Appellant now argues that the prosecutor’s nondisclosure of the pretrial photospread identification violated Md.Rule 4-263(a)(2), causing serious prejudice to the defense and violating the appellant’s rights to Due Process. He asserts that, although the trial court corrected the identification with a curative instruction, the prejudice was not mitigated because too much time elapsed. This latter assertion is based on the fact that a weekend recess occurred between the testimony of the witness and the giving of the curative instruction. Appellant contends that either the entire identification of Tibbs should have been stricken or a mistrial declared.

We see the matter in an entirely different light. Following the weekend recess, the judge conducted an in camera hearing. The witness explained that her identification of Tibbs was not based on the pretrial photograph identification, but that her description of his clothing was based on those photographs. Inasmuch as the court provided a curative instruction to the jury regarding the ²⁵² witness’s description of Tibbs’s clothing, the matter was properly handled. “[W]hen curative instructions are given, it is presumed that the jury can and will follow them.” Brooks v. State, 68 Md.App. 604 , 515 A.2d 225 (1986); see also Bruton v. United States, 391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 (1968); Wilson v. State, 261 Md. 551 , 276 A.2d 214 (1971).

The witness’s testimony that the photographic spread did not influence her identification of Tibbs, together with her opportunity to view Tibbs shortly after the murder, satisfies Neil v. Biggers, 409 U.S. 188 , 93 S.Ct. 375 , 34 L.Ed.2d 401 (1972); Foster v. State, 272 Md. 273 , 323 A.2d 419 (1974); and Dobson v. State, 24 Md.App. 644 , 335 A.2d 124 (1975). The fourth incident occurred when the prosecutor asked the accomplice Roscoe, “Can you tell the ladies and gentlemen of the jury, was there ever any concern for what happened to the victim in this case?” The judge sustained appellant’s objection and again admonished the prosecutor. Defense counsel’s motion for mistrial was denied. Tibbs contends that either the mistrial should have been granted or the jury should have been told that the question was improper.

The transcript of the trial indicates that defense counsel did not ask the court for a curative instruction. The matter, therefore, is not properly before us. Moreover, whatever prejudice the improper question may have caused was de minimis considering that the witness did not respond to it. See generally Wilhelm v. State, 272 Md. 404 , 326 A.2d 707 (1974).

Tibbs’s fifth example of prosecutorial overreaching is a “rerun” of the issue raised in parts I and II of this opinion, namely, that the prosecutor