Ware v. State

HOLLANDER, J. This protracted litigation arises from the brutal murders of two young women in 1993. In 1995, Darris Ware, appellant, was convicted in the Circuit Court for Howard County (Sweeney, J.), on two counts of first-degree murder, for which he was sentenced to death. That conviction was reversed by the Court of Appeals, which determined that the State had unlawfully suppressed material evidence favorable to Ware. See Ware v. State, 348 Md. 19, 52 , 702 A.2d 699 (1997) (“Ware I ”).

Ware was re-tried in 1999 in the Circuit Court for Anne Arundel County (Thieme, J.), and was again convicted and ⁵ sentenced to death. That conviction was affirmed. See Ware v. State, 360 Md. 650 , 759 A.2d 764 (2000), cert. denied, 531 U.S. 1115 , 121 S.Ct. 864 , 148 L.Ed.2d 776 (2001) (“Ware II”). Thereafter, appellant filed a petition for post-conviction relief in April of 2002.

The Circuit Court for Anne Arundel County (Heller, J.) granted the petition, in part, on June 28, 2002 (“Ware III ”). It found that, for two reasons, appellant received ineffective assistance of counsel in Ware II. First, the Ware III Court determined that Ware’s appellate attorney failed to argue that the trial court erred in allowing the prosecution to introduce evidence of appellant’s post- Miranda silence. As to that issue, the circuit court granted appellant a “belated appeal.” Second, the Ware III Court found that Ware received ineffective assistance of trial counsel during the 1999 sentencing proceeding, because his defense attorney was not adequately prepared.

Therefore, it granted Ware a new sentencing. The Court of Appeals subsequently denied the parties’ cross applications for leave to appeal. State v. Ware, 373 Md. 550 , 819 A.2d 1030 (2002) (“Ware IV”). Of import here, the Ware IV Court ordered, id. at 550-51 , 819 A.2d 1030 , that, as to the belated appeal ordered by the Circuit Court on the single issue of whether Darris Ware had received ineffective assistance of appellate counsel, consideration of that appeal is deferred pending the new sentencing proceeding, and the belated appeal will be considered with the appeal, if any, from the decision in the sentencing hearing.

On October 14, 2004, the circuit court (Manck, J.) held a new sentencing hearing, at which the State withdrew its intent to seek the death penalty and instead sought a sentence of life imprisonment, without parole. However, the court did not obtain a new pre-sentence investigation (“PSI”). Instead, at the sentencing on October 14, 2004, the court had the two earlier PSI reports, from 1995 and 1999, and imposed a sentence of life without parole. This appeal followed, in which appellant raises the Miranda issue permitted by Judge Heller by way of a belated appeal, ⁶ and challenges Judge Manck’s sentence.

The State challenges Judge Heller’s ruling permitting the belated appeal of the Miranda issue. Ware poses the following two issues: I. Whether the trial court erred, under the United States Constitution and the Maryland Declaration of Rights, by allowing the prosecution to introduce and emphasize evidence of post-Miranda silence[.] II. Whether the trial court’s error in allowing the prosecution to introduce and emphasize evidence of post- Miranda silence was not harmless beyond a reasonable doubt when the prosecution used that silence as evidence of guilt and to fill a significant evidentiary gap in the State’s case, and when the other evidence presented by the [S]tate was circumstantial and the State’s key witness was substantially impeached[.] III. Whether the sentencing court committed plain error by failing to order and consider an updated PSI report, but instead relied upon two previous PSI reports which excluded five years of Mr. Ware’s history [during his incarceration.] The State asks: 1.

To the extent preserved, did the trial court properly exercise discretion in admitting the testimony of Detective Michael Praley regarding his post-arrest interview with Ware? For the reasons that follow, we shall affirm. FACTUAL AND PROCEDURAL SUMMARY On September 11, 1995, appellant was found guilty of two counts of first-degree murder and two counts of the use of a handgun in the commission of the murders, for which he was sentenced to death. See Ware I, 348 Md. at 28 , 702 A.2d 699 .

However, the Court of Appeals reversed those convictions. See Ware I. Consequently, Ware was retried and again convicted in 1999; the Court of Appeals affirmed. Ware II, 360 ⁷ Md. 650, 759 A.2d 764 . Thereafter, appellant brought the post-conviction proceeding that led to this appeal.

As the appeal is based on the 1999 trial (Ware II), we shall rely on the factual summary set forth by the Court of Appeals in Ware II, 1 and supplement it with facts pertinent to this appeal. In Ware II, 360 Md. at 661-63 , 759 A.2d 764 , the Court wrote: Ware and Kristi Gentry [ ] met and began dating in 1991. Their relationship became serious, and Ware moved into the house in Severn where Kristi lived with her mother, Nina Gentry, in August of 1993. In September of 1993, however, according to Nina Gentry’s testimony, the relationship became strained, and Ware moved out.

On December 30, 1993, Nina Gentry returned home from work at midday and found Kristi, then 19, and her friend Cynthia Allen, 22, lying on the floor in the house. Each had been shot in the chest and at point-blank range in the head. Kristi was dead, and Cynthia died later in the hospital. Projectiles fired from a .380 caliber gun were found in the victims’ bodies, and .380 caliber shell casings were found on the floor near the victims.

Most of the critical testimony in the case concerned events occurring the morning of the day of the murders, a few hours before Nina Gentry discovered the victims. At approximately 9:00 a.m., Kristi’s friend Adrian Washington telephoned Kristi at the house. Adrian testified that Kristi sounded scared and that she abruptly hung up the phone twice. He then received a call from an angry male caller who quickly hung up; Ware’s statement to the police indicated that Ware used caller ID to return Adrian’s call, and told Adrian not to call the house again.

Then, Adrian received a call from Kristi, during which he heard Kristi say, “Darris, I can’t breathe. Get off me. You’re hurting me.” ⁸ After this call, Adrian immediately called his brother Thomas Washington, who in turn called the Gentrys’ house. Thomas spoke to Ware, and the two argued.

Thomas told Ware to stop what he was doing to Kristi, and Ware became angry. Ware asked Thomas whether he “was bulletproof’ and threatened to “get [him] and [his] punk-ass brother.” After this conversation, at about 10:00 a.m., Thomas telephoned Kristi’s brother Kevin Gentry at his place of employment in Laurel. Along with a co-worker, Kevin then drove to his mother’s house, where he confronted Ware, beating him. Afterward, Kevin testified, Ware left the house, went to his car, retrieved a gun and pointed it at Kevin, threatening to kill him.

Ware subsequently drove away. When Kevin also drove away to return to work, he came upon Ware returning to the house in his car; according to Kevin, Ware stopped and got out of the car and brandished a gun, as Kevin attempted to run Ware over with his car. Ware escaped harm. Kevin then returned to work in Laurel, arriving there before 12:00 noon.

Deborah Amrhein, a sales clerk at the On Target shooting range and sporting goods store in Severn, told police she saw Ware in the store at about lunch time on December 30. A store manager testified that one box of .380 caliber ammunition of the type and make used by the killer was sold on December 30 at about 12:10 p.m. Neighbors of the Gentrys testified that they saw Appellant arrive back at the house between 12:00 and 12:30 p.m. In his statement to the police, Ware admitted that he owned a .380 caliber handgun.

The murder weapon was never found. At about 12:00 noon, Edward Anderson, an inmate at the Maryland House of Corrections Annex in Jessup and a friend of Kristi, telephoned the house. He spoke to Cynthia, who told him that Ware was in the house and that Kristi and Ware were arguing. Anderson heard Kristi screaming.

Then, Anderson heard three gunshots, followed by silence and the sound of someone hanging up the phone. Prison records indicated that this call terminated at 12:31 p.m. Anderson then called neighbors of the Gentrys and ⁹ asked them to check on the house; neighbor Clyburn Cunningham, Jr. went to the house and rang the doorbell. There was no answer.

Nina Gentry had spoken to Kevin Gentry earlier in the morning when he came, upset, to see her at her workplace, after his encounter with Ware. Some time after noon, she decided to leave work and go to the house. After finding the victims, she called 911. Paramedics and police came to the house.

While the police were in the house, Ware called, identified himself, and spoke to police officers. Ware asked if Kristi was there. A police officer asked Ware to come to the house; the officer then departed to look for Ware at an address where he was believed to live. The officer encountered Ware a short distance away, driving toward the house, and arrested him.

The Court also referred to the testimony of Antonio Barnes, Ware’s roommate. He “testified on direct examination to Ware’s possession of a gun and to the search of their apartment after the shootings.” Id. at 683 , 759 A.2d 764 . After his arrest, Mr. Ware was advised of his Miranda warnings. 2 Mr. Ware initialed and signed an advice of rights form, indicating that he was willing to talk to the police without the presence of counsel. Thereafter, several police officers, including Detective Michael Praley, interrogated Ware from approximately 6:21 p.m. until 1:58 a.m.

Ware never confessed to the murders. At trial, during the questioning of Detective Praley, the following ensued: [PROSECUTOR]: Now, when you began the interview, can you tell us what you first asked the Defendant? [PRALEY]: It was suggested to him that we could be compassionate and understand how this could occur. From that, we didn’t get a reply. So it was at that point we asked ¹⁰ the Defendant if he would recount his day for the last 24 hours.

(Emphasis added.) Detective Praley’s testimony continued with the details of his question-and-answer session with Ware, which included Ware’s description of his activities leading up to the time of the killings. Id. at 214. At that time, Mr. Ware admitted that he saw Ms. Gentry the previous morning, and claimed that they had sexual relations. Id. at 215.

According to Ware, Ms. Gentry told him that she was pregnant, and they argued after that revelation. During the altercation, appellant struck Ms. Gentry. Id. at 217. He also admitted that, later in the morning, he had a fight with Ms. Gentry’s brother.

Id. at 216. In addition, Ware admitted that he owned a “.380” handgun. Detective Praley stated: “He described it as black grips with a silver frame.” The following exchange ensued: [PROSECUTOR]: Did he tell you where that gun was? [PRALEY]: He told me that he kept [it] at his apartment. The apartment, being his, would be described [as] the one he was staying [in] over on Village Squares with Antonio Barnes. [PROSECUTOR]: And did he tell you that — did he say anything about its whereabouts on December 30th ? [PRALEY]: The gun? [PROSECUTOR]: Yes. [PRALEY]: No. [PROSECUTOR]: Did you ask him where you could find the gun? [PRALEY]: It was asked.

I didn’t get a response. [PROSECUTOR]: Okay. What else did he tell you? [DEFENSE COUNSEL]: Your Honor, can we approach for a minute? [THE COURT]: Yes. (Emphasis added.) A bench conference ensued: ¹¹ [DEFENSE COUNSEL]: With respect to the interrogation, I think that the only thing that is admissible are the answers that the officer asked and the responses he gets. If there is no response, that should not be admissible, his post-Miranda— [THE COURT]: What is the theory for that? [DEFENSE COUNSEL]: Well, there is no answer. [THE COURT]: I mean, — have a question and then — what is the Officer supposed to say? [DEFENSE COUNSEL]: Well, he shouldn’t be allowed to testify.

He should only be allowed to testify to those answers that he got — those questions that he got responses to. If he didn’t get a response, he shouldn’t be able to testify. [THE COURT]: No. No. No. The point of him testifying— exercise his right to remain silent. But he has given up that right to remain silent. [DEFENSE COUNSEL]: Which he can invoke at any time. [THE COURT]: And you — because he chooses not to an-, swer a damning question, that he is now re-invoking his silence? [DEFENSE COUNSEL]: I think my concern is that the answer could be inferred that somehow the failure to answer was somehow — one might — yes. It could be interpreted that way.

It could be interpreted as an invocation of Defendant. The answer could be interpreted as an invocation of Defendant. [THE COURT]: Well, I have no indication that he has now — chooses not to speak to the officer. [DEFENSE COUNSEL]: You have him not answering, Your Honor. [THE COURT]: Yes. Not answering one question. Did he answer any further questions? [DEFENSE COUNSEL]: Two questions. ¹² [THE COURT]: All right.

Two questions. Did he answer any other questions? [PROSECUTOR]: No. I believe that was the one that he did not respond to. [THE COURT]: I know. But did he, the officer, ask him any other questions after this? [PROSECUTOR]: Yes. [DEFENSE COUNSEL]: That he got answers from? [PROSECUTOR]: Yes. [DEFENSE COUNSEL]: Okay. [THE COURT]: I will leave the answer stand. In its closing argument, the prosecution stated, without objection: [Defense counsel] told you, in his opening statement, that his client is innocent.

Completely innocent. Well, ladies and gentlemen, where is the innocent man’s gun? The police asked him that very question, and he doesn’t answer. The police searched his Jeep.

It is not there. The police looked behind the speaker in his apartment. In fact, they looked everywhere in his apartment, and that gun is nowhere to be found, ladies and gentlemen. [3] This is only one reason that the Defendant’s gun is nowhere to be found after these murders, and it is not a coincidence. The Defendant used his .380 Davis handgun to murder Christie and Cynthia and then got rid of the murder weapon so that he wouldn’t be tied to the murders he had just committed. ¹³ He believes, in his mind, at that point he has gotten rid of the only witness and the weapon.

He will never be caught. (Emphasis added.) Mr. Ware was convicted of two counts of first-degree murder and two handgun convictions. Ware II, 360 Md. at 660, 663 , 759 A.2d 764 . Concluding that there were “no errors that tainted the proceedings,” the Court of Appeals affirmed both the convictions and the death sentence.

Ware II, id. at 660-61, 759 A.2d 764 . As noted, appellant sought post-conviction relief in 2002, which the circuit court granted, in part, on two grounds. First, the Ware III Court found that appellant received ineffective assistance of appellate counsel in Ware II, because his appellate attorney failed to challenge the admission of Detective Praley’s testimony regarding appellant’s post-Miranda silence. In its Memorandum Opinion and Order of June 28, 2002, the circuit court stated in Ware III: Mr. Ware argues that his appellate counsel should have argued on appeal the issue of the officer’s testimony regarding Mr. Ware’s selective silence when interviewed immediately after the murders.

Mr. Ware notes that his trial counsel did object to the admissibility of such testimony. Similarly, Mr. Ware argues that appellate counsel erred in not raising the preserved error on the requested separate consideration instruction. Although Maryland law allows appellate counsel discretion in making the decision of which errors to bring forth on appeal, not raising this issue on appeal gives the Court great concern. The Court finds the issue of the Officer’s testimony regarding Ware’s selective silence during his interrogation as a compelling issue on appeal, particularly since the error had been preserved by counsel.

(Emphasis added.) 4 Second, the circuit court determined that appellant received ineffective assistance of trial counsel at his sentencing in 1999. ¹⁴ Therefore, the Ware III Court awarded appellant a new sentencing hearing, explaining: Mr. Ware alleges that trial counsel was ineffective because he was unprepared for the capital sentencing phase of the trial. First, Mr. Ware contends that his trial counsel expected him to elect a judge sentencing, so he was unprepared when he chose to be sentenced by a jury. Although his trial counsel sought postponement, the request was denied. Second, Mr. Ware maintains that the failure to present the sole expert witness for the defense, a social worker and mitigation specialist as a live witness instead of by video deposition, prejudiced his case.

Third, Mr. Ware’s trial counsel did not request any specific sentencing instructions. Particularly, Mr. Ware asserts that a youthful age instruction would have been appropriate as it was a statutory mitigator. At the post-conviction hearing, trial counsel testified that they had not been prepared for the sentencing phase of trial before the jury and thus could not present the above mitigation evidence. Trial counsel testified that at all times they expected that the sentencing phase would be before the court.

The State’s Attorney, in his argument to this Court during the post conviction hearing, acknowledged error by trial counsel given the lack of preparedness for sentencing; in fact, when questioned by the Court as to the second prong of Strickland, the State’s Attorney deferred the issue of prejudice for the Court’s ruling rather than denying its effect. The Court concludes that these errors prejudiced Mr. Ware’s sentencing phase such as to deny Mr. Ware his constitutionally guaranteed right to counsel. The court’s ruling culminated in a re-sentencing in 2004, at which the court received evidence regarding appellant’s conduct in prison by way of transcripts of testimony from the ¹⁵ 1999 sentencing hearing. 5 Moreover, “Supermax” Correctional Officer Corporal Elizabeth Bean testified that Ware was respectful and non-aggressive with prison staff, correctional officers, and other inmates; that he was helpful with laundry and cleaning; that he shared with other inmates; and that he had never been a problem inmate. Mr. Ware also presented testimony from a forensic psychiatrist, David Williamson, M.D, who was accepted as an expert on forensic and correctional psychiatry.

He “had a face-to-face interview and evaluation of the Defendant for two hours” and extensively examined trial and sentencing testimony, documentary evidence of appellant’s mother’s mental health problems, interviews with appellant’s military colleagues, social acquaintances, and extended family members. He also reviewed appellant’s “base file” from the Division of Corrections and the two prior pre-sentencing investigations. Regarding Mr. Ware’s “base file,” Dr. Williamson stated: I looked at his base file for tickets or infractions in the Division of Corrections — I believe you said he has been in for 11 years; I saw one infraction, allegedly for fighting, and infractions for having a chair in his cell and not moving at feet-up time; but not a history of recurrent assaults, aggression against correctional officers, extortion from peers and the like. In addition, the court had two PSI reports from July 1995 and July 1999, prepared for previous sentencing proceedings in the same case.

The court indicated that it read all the information that had been provided. However, no request was made for an updated PSI report, nor was one obtained by the court. On the first-degree murder charges, the court sentenced Mr. Ware to two life sentences, without the possibility of parole. The court also imposed concurrent ten-year sentences for the two handgun offenses. ¹⁶ As noted, in 2002 the Court of Appeals deferred consideration of the belated appeal until the conclusion of the new sentencing, which occurred in October of 2004.

As a result of that sentencing, this is no longer a death penalty case. Therefore, the matters of the belated appeal and the sentencing are now before this Court. DISCUSSION I. The Right to Remain Silent [6] A. Contentions Appellant contends that he “twice exercised his right to remain silent during post -Miranda interrogation.” 7 Yet, he complains that, “having exercised this constitutionally protected right, the trial court permitted the prosecution to introduce [his] silence into evidence” through Detective Praley’s testimony. Furthermore, he complains that the trial court erroneously permitted the prosecution, in its closing argument, to emphasize that Mr. Ware evidenced his guilt by remaining silent when the police asked him the location of his gun.

According to appellant, “a court must presume ... that a defendant’s post-Miranda silence is an exercise of his Consti ¹⁷ tutional right to remain silent.” Appellant insists that it is “clear error to allow a defendant’s post-Miranda silence into evidence unless the State satisfies its heavy burden of showing by clear and convincing evidence that the defendant’s silence was not an invocation of his right to remain silent.” In his view, the State did not meet its “heavy burden,” because it did not introduce evidence at the 1999 trial “suggesting that Mr. Ware’s silence was other than an invocation of his right to remain silent,” nor did the trial court make “any findings to that effect.” Furthermore, appellant argues that the error was not harmless. He claims that this Court must reverse unless the State can show, beyond a reasonable doubt, that “(1) the violation was technical in nature, and (2) that the erroneously admitted evidence was merely cumulative, and (3) that there was other properly admitted evidence that was overwhelming and largely uncontroverted.” According to Mr. Ware, the trial court’s error was “more than merely technical or procedural error because the court allowed the prosecution to use Mr. Ware’s silence as substantive evidence of guilt, and because the error violated a substantial constitutional right of Mr. Ware.” Nor was it merely cumulative, argues appellant, because the “[p]o-lice had not located Mr. Ware’s gun, and the State could produce no direct evidence to show that his gun was used in the killings.” And, he contends that the evidence against him “was not overwhelming and was controverted,” and was “weaker than the evidence against the defendant in Younie.” The State counters: “Preliminarily, Ware failed to properly preserve his argument for appeal.” Referring to Detective Praley’s testimony that Ware failed to respond when the police suggested that they had “compassion” and would “understand” what had happened, the State points out that Ware did not object when “Praley testified to the absence of a response from Ware [to that comment] during the interview____” In its view, the “failure to object constitutes a waiver of the claim on appeal.” With regard to the inquiry as to the gun, the State contends: “[T]he second objection came ¹⁸ long after the pertinent question and answer. This belated objection also constitutes a waiver of the claim on appeal.” 8 Even if preserved, the State argues that “the trial court’s ruling was entirely correct.” Although it recognizes that post-arrest silence is generally inadmissible as substantive evidence of guilt, it asserts: [N]one of these cases holds that the absence of a response to a question during an interview after being given full Miranda advisements and agreeing to the interview is the equivalent of silence. Further, it is a stretch of the imagination to read Ware’s non-response to two questions as revocation of his earlier Miranda waiver.

Alternatively, the State posits: “Even assuming, arguendo, it was error to admit the testimony of Detective Praley, such error was harmless beyond a reasonable doubt.” According to the State, the evidence “as recounted by the Court of Appeals” was “overwhelming” and, “[g]iven the evidence presented, which clearly established Ware’s guilt in the murders ... there is no possibility that the testimony of Detective Praley effected [sic] the verdict.” It adds: “Although the prosecutor made mention of the testimony in closing argument, the record shows that the prosecutor did not use the testimony as suggested by Ware.” Regarding the gun, the State contends that the prosecutor merely “commented on the absence of the gun, but did not argue that Ware’s failure to answer the question constituted evidence of Ware’s guilt or guilty conscience.” As noted, the circuit court granted appellant a belated appeal, based on ineffective assistance of appellate counsel, finding “the issue of Praley’s testimony regarding Ware’s selective silence during his interrogation as a compelling issue on appeal, particularly since the error had been preserved by trial counsel.” ¹⁹ “It is well established that a party opposing the admission of evidence ‘shall’ object ‘at the time the evidence is offered or as soon thereafter as the grounds for objection become apparent. Otherwise, the objection is waived.’ ” State v. Jones, 138 Md.App. 178, 218 , 771 A.2d 407 (quoting Md. Rule 4-323(a)), aff'd, 379 Md. 704 , 843 A.2d 778 (2004); see Klauenberg v. State, 355 Md. 528, 545 , 735 A.2d 1061 (1999); Prout v. State, 311 Md. 348, 356-57 , 535 A.2d 445 (1988); Hill v. State, 134 Md.App. 327, 351 , 759 A.2d 1164 , cert. denied, 362 Md. 188 , 763 A.2d 735 (2000). Moreover, an objection must be made when the question is asked or, if the answer is objectionable, then at that time by motion to strike. See Bruce v. State, 328 Md. 594, 627-30 , 616 A.2d 392 (1992), cert. denied, 508 U.S. 963 , 113 S.Ct. 2936 , 124 L.Ed.2d 686 (1993); Dyce v. State, 85 Md.App. 193 , 582 A.2d 582 (1990) (generally, “im proper evidence will not be preserved for appellate review unless the party asserting error objected at the time the evidence was offered or as soon thereafter as the grounds for the objection became apparent.”). “A timely objection ... enables the trial court to attempt to cure any error, which helps to avoid unnecessary appeals.” Jones, 138 Md.App. at 218 , 771 A.2d 407 ; see Hall v. State, 119 Md.App. 377, 389 , 705 A.2d 50 (1998).

Accordingly, the admissibility of evidence may only be reviewed when an objection is timely made. Kang v. State, 393 Md. 97, 122-23 , 899 A.2d 843 (2006); Klauenberg, 355 Md. at 545 , 735 A.2d 1061 ; Conyers v. State, 354 Md. 132, 149 , 729 A.2d 910 , cert. denied, 528 U.S. 910 , 120 S.Ct. 258 , 145 L.Ed.2d 216 (1999); Holmes v. State, 116 Md.App. 546, 558 , 698 A.2d 1139 , aff'd, 350 Md. 412 , 712 A.2d 554 (1998). Furthermore, objections must be reasserted unless an objection is made to a continuing line of questions. Brown v. State, 90 Md.App. 220, 225 , 600 A.2d 1126 (1992) (noting that either an objection must be made to each question or a continuing objection must be made to the entire line of questioning).

See also Johnson v. State, 325 Md. 511, 515 , 601 A.2d 1093 (1992) (where it was apparent that the court’s ruling on further objection would be unfavorable to the defense and persistent objection would only highlight the remarks for the ²⁰ jury, the absence of further objection did not constitute waiver); Williams v. State, 131 Md.App. 1, 26 , 748 A.2d 1 (2000) (“When evidence is received without objection, a defendant may not complain about the same evidence coming in on another occasion even over a then timely objection.”). We shall first consider defense counsel’s failure to object to Fraley’s testimony that appellant did not respond when the officer remarked during the interrogation that the police are “compassionate” and could “understand how this could occur.” Both sides want it both ways. For purposes of waiver, the State asserts that appellant should have objected. Yet, in regard to the merits, it conveniently asserts that there was neither error nor harm because “no inference whatsoever” can be drawn from appellant’s failure to reply, given that the remark “was not even a question.” Similarly, to support his preservation claim, appellant conveniently maintains that Fraley’s comments (that the police were “compassionate” and could “understand” what happened) were easily construed as innocuous remarks that did not invite a response, and thus no objection was required.

In contrast, he vigorously asserts, on the merits, that his silence to a non-question was an invocation of his Fifth Amendment right. As we see it, defense counsel’s failure to object to this line of testimony constituted a waiver of any complaint about it. As we have pointed out, the State argues that no adverse inferences could be drawn from appellant’s silence in regard to these remarks by Praley; they were comments, not a question, says the State. If so, then it is equally difficult to understand the State’s assertion that appellant’s failure to object to the comments amounted to a waiver of his complaint about the unrelated testimony concerning Ware’s silence as to the gun.

Put another way, defense counsel’s failure to object to a non-answer to a non-question would not preclude appellate counsel from complaining about the police testimony concerning appellant’s silence as to the gun, so long as an objection was timely lodged. ²¹ Therefore, we turn to the waiver issue with regard to the gun inquiry. Contrary to the State’s assertion, the defense did not object to the gun inquiry “long after the pertinent question and answer.” Rather, the record demonstrates that defense counsel asked to approach the bench almost immediately after Detective Praley’s testimony that appellant remained silent when asked about the location of the handgun. At the bench, defense counsel raised the precise contention advanced here: the silence was inadmissible. If the defense objects “at the time the evidence is offered or as soon thereafter as the grounds for objection become apparent,” the underlying issue is preserved.

Md. Rule 4-323(a); Bruce v. State, 328 Md. 594, 627-8 , 616 A.2d 392 (1992). 9 We easily conclude that, with respect to the gun, the issue as to the admissibility of appellant’s selective silence is preserved for our review. B. Analysis The privilege against self-incrimination is a “mainstay of the American criminal justice system.” Kosh v. State, 382 Md. 218, 233 , 854 A.2d 1259 (2004). When a defendant in police custody exercises the right to remain silent, a trial court generally may not allow the State to introduce evidence of that silence as substantive evidence of guilt. Id. at 220 , 854 A.2d 1259 (“Post-arrest silence is inadmissible as substantive evidence of a criminal defendant’s guilt, regardless of whether that silence precedes the recitation to the defendant of Miranda advisements.”) Indeed, “Evidence of