Washington v. State

990 A.2d 549 (2010) 191 Md. App. 48 Keith Allen WASHINGTON v. STATE of Maryland. Nos. 00663, 02470, September Term, 2008. Court of Special Appeals of Maryland. January 29, 2010.

Reconsideration Denied March 31, 2010. ⁵⁵⁴ Michael P. Lytle (Warnken, LLC on the brief), Towson, for appellant. Jessica V. Carter (Douglas F. Gansler, Atty. Gen. on the brief), Baltimore, for appellee. Panel: DEBORAH S. EYLER, KEHOE, RODOWSKY, LAWRENCE F.

(Retired, Specially Assigned) JJ. KEHOE, J. Following a nine day jury trial in the Circuit Court for Prince George's County, Keith Allen Washington ("appellant") was convicted of involuntary manslaughter, two counts of first degree assault, and two counts of the use of a handgun in the commission of a felony or crime of violence. Subsequently, the trial court denied appellant's motion for a new trial. Appellant appeals both his convictions and the denial of his motion for a new trial. [1] Appellant presents ten issues to this Court, which we have consolidated, reworded and re-ordered as follows: I. Did the trial court err in prohibiting appellant from introducing evidence of the State's only eyewitness's prior convictions for crimes of violence to demonstrate his allegedly violent propensities?

II

Did the trial court err in preventing appellant from cross-examining the State's only eyewitness about his failure to register as a sex offender in Maryland?

III

Did the trial court err in permitting the State to elicit a hearsay statement that appellant was "looking for a fight," as a present sense impression?

IV

Did the trial court err in failing to declare a mistrial when a State's witness testified that appellant was "hostile" on the telephone after the witness had been ⁵⁵⁵ specifically instructed not to make such a statement? V. Did the trial court err in failing to sustain appellant's objection to the State's allegedly improper remark made in its opening statement?

VI

Did the trial court err in failing to declare a mistrial based upon the State's allegedly improper remarks made in its closing argument?

VII

Did the trial court err in denying appellant's motion for a new trial? The first issue is not preserved for appellate review. We answer the remaining questions in the negative and affirm the convictions. Background Appellant, who was, at that time, a Prince George's County police officer, and his wife, Stacey Washington ("Mrs. Washington"), purchased a bed from Marlo Furniture which was delivered to their Accokeek, Maryland residence in December, 2006.

The bed rails, however, were defective and either appellant or Mrs. Washington requested replacements. Marlo agreed to do so and arrangements were made to deliver the new bed rails on January 24, 2007, between 2:30 and 5:30 p.m. Appellant took off from work to be at home when the delivery arrived. When the bed rails were not delivered during the specified time frame, appellant called Marlo to inquire about the delivery.

After several phone calls, appellant was notified that the rails would be arriving around 7:30 p.m. At about that time, Brandon Clark ("Clark") and Robert White ("White"), two furniture deliverymen, arrived at the Washington residence with the bed rails. Appellant met Clark at the door. Unbeknownst to Clark or White, appellant had a handgun tucked into his waistband.

White and Clark, accompanied by appellant, carried the bed rails to the master bedroom on the second floor. They were alone; Mrs. Washington and the Washington's six year old daughter were having dinner in the first floor kitchen. A few minutes later, appellant shot both Clark and White. White was severely injured and Clark died nine days later from complications related to his wounds.

After an investigation by the Prince George's County Police Department, a grand jury sitting in the Circuit Court for Prince George's County indicted appellant on twelve counts: Count I second degree felony murder (Brandon Clark); Count II second degree specific intent to kill murder (Brandon Clark); Count III second degree specific intent to do serious bodily harm murder (Brandon Clark); Count IV second degree depraved heart murder (Brandon Clark) Count V voluntary manslaughter (Brandon Clark); Count VI involuntary manslaughter — grossly negligent act (Brandon Clark); Count VII involuntary manslaughter — unlawful act (Brandon Clark); Count VIII first degree assault (Brandon Clark); Count IX use of a handgun in the commission of a felony or crime of violence (Brandon Clark); Count X attempted second degree murder (Robert White); Count XI first degree assault (Robert White); Count XII use of a handgun in the commission of a felony or crime of violence (Robert White). Prior to appellant's trial, White filed a civil action against appellant and Prince ⁵⁵⁶ George's County seeking $400,000,000 in damages arising out of the shooting. Appellant's trial was preceded by in limine motions filed by both the State and appellant pertaining to evidentiary matters. Several of the trial court's rulings on these motions are pertinent to the issues raised on appeal and we will discuss them below.

While a detailed description of the evidence presented at trial is not necessary for this opinion, we will summarize the testimony of White, on the one hand, and appellant and Mrs. Washington, on the other, to illustrate the contrast in their versions of events. According to the State, the shootings were unprovoked and unjustified. The State introduced evidence from an employee of Marlo who had spoken to appellant earlier in the day to the effect that appellant was angry and hostile over the telephone. White testified that, upon arriving at appellant's resident, Clark went up to the front door and talked to appellant, while White stayed in the delivery truck.

White recounted that, when Clark came back to the truck to get the bed rails, he told White that appellant was "looking for a fight." White then testified as to his version of what then occurred: [THE WITNESS]: When we went inside, he direct [sic] us to a bedroom upstairs. I was walking first, in front of Brandon. Brandon was walking behind me. He was behind Brandon, and he directed us to a bedroom upstairs.

We went in, we set the rails down, and then Mr. Washington started arguing with Brandon. [THE STATE]: And what was Mr. Washington arguing with Brandon about? [THE WITNESS]: Because, I guess, we got to his house late, and he was upset because he was waiting to his house all day. [THE STATE]: Go ahead and tell us what happened. [THE WITNESS]: So Brandon kneeled down — I'm standing on the other side, close to the railing, Brandon at the bed, and he ask Mr. Washington why you disassemble your bed, and he said — this was his words — "Motherfucker, are you telling me what to do in my house?" I said, "Brandon, do you know Mr. Washington?" Brandon said no. So it was a few seconds later he pushed Brandon and told Brandon to get the fuck out of his house. I said, "Brandon, I think we should go." Brandon said, "No, just let me do my job. It's only going to take ten minutes." Brandon kneeling again — he's still kneeling.

Mr. Washington pushed him again, "Get the fuck out of my house," and the third time he pushed him, he pushed him until he was actually laying on his side. Brandon jump up. I told Brandon, "That's it; we out of here." I stepped between both of them, Mr. Washington and Brandon, Brandon going back out the door with his hands up. I got my back to Mr. Washington, and all I heard was shots after we got out of the room.

He said, "I know how to get you the fuck out my house." [THE STATE]: After you heard the shots, what did you do; what did you see? [THE WITNESS]: Brandon was going back towards the stairs, and I grabbed Brandon to keep him from falling down the stairs. * * * * * * I had to lay him down, and as I ask him where the cell phone at, when I turn around, I hear more shots. Then I realized ⁵⁵⁷ I was hit.... [i]n the chest and in the stomach. * * * * * * I didn't want to go down the stairs because he already shot me. So I moved up, to move away from Brandon,... and I laid down here [pointing to a diagram], down on this side. Mr. Washington went back in his room.

I got back up because I knew I needed help. When I got back up, he comes out of his room and he said, "Motherfucker, didn't I told you to stay down," and he starts shooting again. That's when I realized I was hit in the knee. I went down. [THE STATE]: You went down.

Then what happened? [THE WITNESS]: We laid there screaming, asking him to help us, to call somebody, and he said he wasn't calling nobody. In contrast, appellant and Mrs. Washington testified that appellant had acted in self-defense. Appellant testified that when Clark and White arrived at appellant's home he instructed them to put the bed rails in the foyer, but they carried them to the master bedroom instead. Appellant led Clark and White to the master bedroom, but when he got there, he noticed that White was no longer following.

When appellant asked Clark about White's whereabouts, Clark "backslapped" appellant twice in the chest and told him "I got him, Shorty." [2] Appellant then saw White coming out of appellant's daughter's bedroom. When appellant told White to get out of his daughter's bedroom, Clark again responded with "I told you, Shorty, I got him." Appellant told Clark and White to leave his house. After appellant told Clark and White for the third time to leave his house, Clark responded that appellant needed to watch how he talked to people. Appellant again demanded that Clark and White leave.

He testified: [APPELLANT]: Mr. White punched me on the side of the face. [DEFENSE COUNSEL]: What did Mr. Clark do? [APPELLANT]: When he punched me, Mr. Clark punched me in the back of the head. [DEFENSE COUNSEL]: What did you do after Mr. White punched you and Mr. Clark punched you in the back of the head? [APPELLANT]: When he punched me, I swung around with my hand, and I just covered up because I couldn't stop them. They were on me. [DEFENSE COUNSEL]: What position was your body in when you said you tried to cover up? [APPELLANT]: I was like this, covering up my head and my face and I was — [DEFENSE COUNSEL]: At this time, Your Honor, I'd ask Mr. Washington to step down. [THE COURT]: Okay. (Witness steps down from witness stand.) [DEFENSE COUNSEL]: You can stand in front of the jury. Now, Mr. Washington, you said you attempted to cover up, and you described the position of your body.

Can you let the ladies and the gentlemen of the jury know, after Mr. Clark and Mr. White hit you, what you did physically? [APPELLANT]: Yeah. I swung around, with my hand like that, and they were on me and they was — I was covering up, ⁵⁵⁸ like this, trying to protect my head and my face. [DEFENSE COUNSEL]: And at that point, where is Mr. Clark and Mr. White? [APPELLANT]: Mr. Clark is right here to my left, and Mr. White is right here to my right. [DEFENSE COUNSEL]: And what are they doing at that point? [APPELLANT]: They were hitting me and kicking me. Appellant went on to testify that he shot Clark and White in self-defense. Mrs. Washington testified that she heard appellant, White and Clark going upstairs with the bed rails.

She continued: I didn't hear anything for a little while, and then I heard my husband say, "Get out of my house; leave my house; get out now," and that's the next thing I heard. [DEFENSE COUNSEL]: And once you heard your husband say those words, what did you do? [MRS. WASHINGTON]: I got up. I told [K.] [appellant's and Mrs. Washington's six year old daughter] — I told [K.] to stay put, to don't move, and that's when I got up. And I got up to go see what was wrong, because I could tell something was wrong. * * * * * * [DEFENSE COUNSEL]: Okay Ms. Washington.

You stated that you were walking from the kitchen as you were peering up the stairs. What did you see when you looked upstairs? [MRS. WASHINGTON]: That's when I saw Keith bent over, and these two men were on either side of him and they were beating him. [DEFENSE COUNSEL]: And when you looked up and saw that, what did you do? And you can take your time, Mrs. Washington. [MRS.

WASHINGTON]: I was walking into the hallway and, as I was coming around through the hallway, I looked up and then I could see them, him in the middle, and he was kind of bent over, and then there was one man on either side of him, and they were beating him. And I thought oh, my god; oh, my god; they're just going to beat him to death, because he was just kind of bent over and he couldn't do anything. And I thought, okay, I need to help him; I need to help him. And so I was going to start up the steps.

And as I was getting ready to start up the steps, I was thinking what if something happens to me, what is [K.] going to do? I didn't want her to come in here — (crying). * * * * * * [DEFENSE COUNSEL]: Ms. Washington, I think where we were, you were about to describe — I'll just ask you the question. As you looked upstairs, as you're leaving the kitchen, where were the deliverymen positioned with respect to where your husband, Keith Washington, was? [MRS. WASHINGTON]: He was bent over, and there was one man on either side of him. [DEFENSE COUNSEL]: I believe you said that you were at the bottom of the stairs.

At that point, when you looked upstairs and you were at the bottom of the stairs, what did you say or do? [MRS. WASHINGTON]: The first thing I thought was, my god; oh, my god, I need to help him. * * * * * * [MRS. WASHINGTON]: As I started to go up the steps, that's when I knew I ⁵⁵⁹ couldn't help him. And then I was going to call 911.

(Crying.) After the shootings, Mrs. Washington called 911. Appellant joined in the call. The State played a recording of the call to the jury. The State introduced forensic evidence regarding the gunshots.

The evidence could support the conclusion that at least one of the gunshots was fired from a distance of four feet or more, while the other gunshots were at closer range. A DNA analysis of appellant's handgun indicated that both appellant's and White's DNA was present on it. The State also presented the testimony of an emergency room physician who treated appellant on the night of the shooting. She did not observe any trauma to appellant's neck or face.

She also testified that the X-rays taken of appellant were negative, indicating no fractures. The emergency room nurse who examined appellant that night gave similar testimony. To further corroborate the physician's testimony, the State also introduced a photograph of appellant taken before he was transported to the hospital, which did not reveal any indication of significant injury. Appellant called other witnesses who had been present at the Washington residence after the shootings.

They testified that appellant's face appeared puffy or swollen on the night of the shooting and that appellant was holding an ice pack to his face before being transported to the hospital. The appellant called a forensic pathologist who testified that, in his opinion, White's testimony was not consistent with evidence regarding his injuries and Clark's autopsy. On February 13, 2008, the jury convicted appellant of involuntary manslaughter — unlawful act (Brandon Clark), two counts of first degree assault (Brandon Clark and Robert White), two counts of use of a handgun in commission of a felony or crime of violence (Brandon Clark and Robert White), and attempted second degree murder (Robert White), and acquitted him of all remaining counts. Appellant was sentenced on May 27, 2008, to a total of 45 years incarceration. [3] Appellant filed a timely notice of appeal from those convictions on May 30, 2008.

On August 25, 2008, appellant filed a motion for a new trial, which was denied on November 21, 2008. Appellant filed a timely notice appealing that judgment on December 2, 2008. Additional facts will be discussed as necessary in this opinion. I. Did the Trial Court Err in Prohibiting Appellant from Introducing Evidence of White's Prior Convictions to Demonstrate His Allegedly Violent Propensities?

Before this Court, appellant contends: ⁵⁶⁰ Prior to trial, counsel for [appellant] discovered that White, the State's only eyewitness, had 11 prior convictions and received at least one significant period of incarceration (a fact that helped explain why the witness had no convictions between 1995 and 2005). In support of his self-defense theory at trial, Mr. Washington sought to introduce White's prior convictions to attack White's credibility and to show bias, and because the probative value of his convictions far outweighed any prejudicial effect. * * * * * * In response, Mr. Washington argued that, given the nature of Mr. White's prior convictions, the convictions were highly relevant to White's credibility. The defense asserted multiple theories of admissibility, specifically claiming that the convictions were admissible under (1) the United States Constitution, (2) Md. Decl. of Rights art. 21, and (3) Md. Rule 5-609. Moreover, White's convictions were evidence of bias....

The trial court committed reversible error. Because White's convictions for aiming a firearm, assault and battery, assault with intent to commit a sexual offense, and domestic violence are relevant to the issue of first aggressor status, their exclusion was improper.... Asserting that White's status as the initial aggressor was an "essential element" to his claim of self-defense, and relying on Hemingway v. State, 76 Md.App. 127 , 543 A.2d 879 (1988) [4] , and Md.Code Ann., Cts. & Jud. Proc. § 9-115, appellant contends that he was entitled to introduce White's prior convictions to prove White's violent nature.

Such evidence, appellant argues, would be relevant to appellant's assertion that White and Clark were the first aggressors. Appellant's argument was not presented to the trial court and, as such, is not subject to review by this Court in this proceeding. We will explain. A. Preservation.

At the time of trial, White had the following criminal record: Date of Conviction: Jurisdiction: Conviction: 7/10/89 Virginia Unlawful Entry 7/10/89 Virginia Larceny 6/7/91 South Carolina Receiving Stolen Goods 6/7/91 South Carolina Attempted 3rd Degree Burglary 8/3/93 South Carolina Grand Larceny 6/16/94 South Carolina Pointing a Firearm 4/27/95 South Carolina Receiving Stolen Goods 6/14/95 South Carolina Assault and Battery 12/13/95 South Carolina First Degree Burglary 12/13/95 South Carolina Assault with Intent to Commit Sexual Conduct 1/27/05 South Carolina Domestic Violence ⁵⁶¹ The State filed a motion in limine requesting that the trial court "order that the defense not be permitted to impeach the testimony of [White] by introducing evidence of the 1989 unlawful entry and larceny convictions; the 1991 attempted third degree burglary and receiving stolen goods convictions; the 1994 pointing a firearm conviction; the 1995 convictions for assault and battery, first degree burglary and assault with intent to commit sexual conduct; and the 2005 domestic violence conviction." In its motion, the State contended: (1) that the 1991 and 1994 convictions were more than 15 years old and were thus not admissible for impeachment purposes pursuant to Maryland Rule 5-609(b); (2) the convictions for pointing a firearm, assault and battery, first degree burglary and domestic violence were inadmissible for impeachment purposes because violent crimes have "`little, if any, bearing on honesty and veracity'" and (3) the assault with intent to commit sexual conduct was "in the same vein with the crimes of violence mentioned previously and should likewise be inadmissible for impeachment purposes." Appellant's response to the State's motion in limine asserted that White's convictions were admissible to impeach White's credibility and to show White's bias. Appellant did not assert that he was also seeking admission of White's convictions to prove White's allegedly violent nature or that White was the first aggressor. [5] On January 14, 2008, the trial court, after conducting a hearing and receiving memoranda of law for both sides, issued an order excluding all of White's convictions other than those for grand larceny, receiving stolen goods, and first degree burglary as relevant to White's credibility. Maryland Rule 8-131(c) provides in pertinent part that "[o]rdinarily, the appellate court will not decide any ... issue [other than jurisdiction] unless it plainly appears by the record to have been raised in or decided by the trial court...." In Evans v. State, 174 Md.App. 549, 557 , 922 A.2d 620 , cert. denied, 400 Md. 648 , 929 A.2d 890 (2007), we explained: Maryland appellate courts have consistently held that they will not review issues not raised or decided at the trial level. See Taylor v. State, 381 Md. 602, 612 , 851 A.2d 551 (2004) (citing Md. Rule 8-131(a) in holding that a claim of double ⁵⁶² jeopardy was not preserved because it was not raised at the trial level); Conyers v. State, 354 Md. 132, 148 , 729 A.2d 910 , (1999) (citing Md. Rule 8-131(a) in holding that several issues in review of a death sentence were not preserved because they were not raised at the trial level)....

We have specifically held that the failure to argue a specific theory in support of a motion to suppress evidence constitutes waiver of that argument on appeal. Johnson v. State, 138 Md.App. 539, 560 , 772 A.2d 1260 (2001) (citing Reynolds v. State, 327 Md. 494, 502-03 , 610 A.2d 782 (1992); Brashear v. State, 90 Md.App. 709, 720 , 603 A.2d 901 (1992)). In Univ. Sys. of Md. v. Mooney, the Court of Appeals explained: [t]he purpose of [Rule 8-131(a)] is to require counsel to bring the position of their client to the attention of the lower court at the trial so that the trial court can pass upon, and possibly correct any errors in the proceedings and to prevent the trial of cases in a piecemeal fashion, thus accelerating the termination of litigation. 407 Md. 390, 401 , 966 A.2d 418 (2009) (citations and quotations omitted).

Since appellant failed to raise the issue of the admissibility of White's convictions as evidence of his allegedly violent character to the trial court, we will not consider the issue on appeal. B. Competency of Trial Counsel. As an alternate ground for appellate relief, appellant argues that his trial counsel provided ineffective assistance of counsel by failing to preserve the issue for appellate review. Conceding that "claims of ineffective assistance of counsel are usually limited to post conviction proceedings" as opposed to direct appeals, appellant argues that this Court should consider the ineffective assistance of counsel issue.

Appellant states: The record in this case makes clear the following: (1) trial counsel strenuously argued for the admission of White's criminal convictions; and (2) there is a mountain of case law on admissibility of such convictions in the self-defense context. From that vantage point, it is clear that, if the argument was not preserved for appeal, (1) it was not a strategy of trial counsel to not argue what was perhaps the most likely route to the admissibility of the convictions, and (2) trial counsel committed a serious error in not making the argument. In order to prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate that (1) "counsel's representation fell below an objective standard of reasonableness," and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). Courts employ two presumptions, first, that trial counsel was competent, and, second, that "the challenged action might, under the circumstances, be considered sound trial strategy." Oken v. State, 343 Md. 256, 283 , 681 A.2d 30 (1996).

Generally, the appropriate avenue for the resolution of a claim of ineffective assistance of counsel is a post-conviction proceeding: By having counsel testify and describe his or her reasons for acting or failing to act in the manner complained of, the post conviction court is better able to determine intelligently whether the attorney's actions met the applicable standard of competence. Where, as here, the record sheds no light on why counsel acted as he did, direct review by this Court would primarily involve "the perilous process of second-guessing," ⁵⁶³ perhaps resulting in an unnecessary reversal in a case where sound but unapparent reasons existed for counsel's actions. Consequently, we leave consideration of [the defendant's] ineffective representation claim to the circuit court upon post conviction proceeding where there can be a studied evaluation of a proper record should appellant choose to pursue the matter.[] Johnson v. State, 292 Md. 405, 435 , 439 A.2d 542 (1982), abrogated in part on other grounds, Hoey v. State, 311 Md. 473, 495 , 536 A.2d 622 (1988) (citation and footnote omitted). Review of an ineffective assistance of counsel claim on direct appeal is only appropriate if the ineffectiveness is revealed to be "blatant and egregious" by the record alone.

Mosley v. State, 378 Md. 548, 563 , 836 A.2d 678 (2003). The Court of Appeals provided examples of such error in Smith v. State, 394 Md. 184, 200 , 905 A.2d 315 (2006), and In re Parris W., 363 Md. 717, 726 , 770 A.2d 202 (2001). In In re Parris W., the juvenile's counsel mistakenly subpoenaed witnesses for the wrong trial date. 363 Md. at 727 , 770 A.2d 202 . The attorney admitted to the error, id., and there was no question as to his motivation.

There was no suggestion that trial tactics, or anything other than a simple mistake, lay behind trial counsel's action. Since the attorney admitted his mistake to the trial court, there was no need for the Court of Appeals to exercise the deference traditionally given to trial counsel with regard to tactical decisions. Id. In Smith , the trial transcript clearly established that trial counsel disclosed privileged attorney-client communications to the trial court. 394 Md. at 192 , 905 A.2d 315 .

The Court of Appeals stated that since "we can conceive of no circumstances that would require Smith's counsel to reveal the substance of his advice to the court.... [W]e conclude that a collateral evidentiary hearing concerning Smith's counsel's disclosure would be superfluous." Id. at 201 , 905 A.2d 315 . The case before us is different. Unlike Parris W., there was no admission of error by trial counsel; in contrast to Smith , there was no clear and unambiguous breach of a lawyer's responsibility to a client. In the instant case, appellant's appellate counsel have identified a trial strategy that they believe should have been pursued at trial.

The failure to do so may have been a matter of lawyerly dereliction or may have reflected a tactical consideration by trial counsel. Upon the record presented to us, we can only speculate. Under these circumstances, the appropriate avenue for the resolution of the claim of ineffective assistance of counsel is a post-conviction proceeding. Johnson v. State, 292 Md. at 435 , 439 A.2d 542 .

II

Did the Trial Court Err in Preventing Appellant from Cross-Examining White about White's Failure to Register as a Sex Offender in Maryland? In 1995, White was convicted in South Carolina of assault with intent to commit sexual conduct. As such, he was required to register as a sexual offender with the Secretary of the Maryland Department of Public Safety and Correctional Services within fourteen days of commencing employment in Maryland. See MD.CODE ANN.

CRIM. PROC. § 11-705(b)(3)(i) (2008). White had been delivering furniture in Maryland for approximately three weeks prior to the events at appellant's residence and had not registered as a sexual offender in Maryland at that time. ⁵⁶⁴ Prior to trial, appellant filed a motion in limine requesting permission to cross-examine White as to his failure to register. Appellant advanced four bases for admissibility regarding White's failure to register: (1) to expose a motive to lie and/or bias in light of circumstantial evidence that White expected a "deal" from the State regarding his failure to register in exchange for his testimony against appellant; (2) to expose a motive to lie and/or bias in light of his pending civil action against appellant and Prince George's County because a conviction would virtually guarantee a "win" for White in his civil action; (3) as a prior act that is probative of untruthfulness, pursuant to Md. Rule 5-608(b); and (4) to impeach White's credibility in light of his sex offender status because the jury may have disbelieved White's testimony if it was aware that White was a convicted sex offender, and according to appellant, was found in appellant's daughter's bedroom.

The trial court held a hearing on the motion. At the hearing, the State represented, without contradiction, that no offer had been made to White regarding his failure to register as a sex offender. The State also called White as a witness. On direct examination, he testified that he was aware that he could be charged for failing to register, that the Prince George's County State's Attorney's office would determine whether he was to be charged, and that a favorable assessment of his criminal trial testimony by the State's Attorney's office might affect its decision whether to charge him.

On cross-examination, the following exchange took place: [DEFENSE COUNSEL]: Mr. White, it is your expectation that if the State views your testimony, in a trial against Mr. Washington, favorably, that they will consider that in the decisions they make about whether or not to charge you with failing to register in the State of Maryland as a sex offender, correct? [THE WITNESS]: I don't know. * * * * * * [DEFENSE COUNSEL]: It is your expectation, Mr. White, that if the State views your testimony at Mr. Washington's trial as favorable, that they might consider that when making decisions, if you were prosecuted, about what kind of plea offer you might receive. [THE WITNESS]: I don't know. * * * * * * [DEFENSE COUNSEL]: What are you saying you expect? [THE WITNESS]: I don't know what they going to do. [DEFENSE COUNSEL]: My question to you is not what you know about what they're going to do, but what your expectation is. The question is, is it your expectation that if the State views your testimony in the trial of Mr. Washington favorably, that they would consider that in deciding whether or not you'll get prosecuted for failing to register as a sex offender? [THE WITNESS]: I don't know. [DEFENSE COUNSEL]: You don't know what your expectation is? [WITNESS]: No. At the conclusion of the hearing, the trial court stated: [THE COURT]: Okay. The exact nature of your motion in this instance was a motion in limine ... for permission to elicit, on cross-examination, Robert White's failure to register as a sex offender in Maryland, that it be admissible as a motive to falsify testimony in order to curry favor with the State. I've read the Ware [ v. State, 348 Md. 19, 67 , 702 A.2d 699 (1997)] case.

I've ⁵⁶⁵ read the Ebb [ v. State, 341 Md. 578, 587 , 671 A.2d 974 (1996)] case. I've gone over other cases, as well, on this specific issue, and believe that, in this instance, the Ebb case is dispositive. My understanding of Mr. White's testimony and the proffer made by the State at the bench, which was accepted by the defense, was that no offer whatsoever was made by the State to Mr. White in the instance of his failure to register as a sex offender in the State of Maryland. I heard Mr. White's testimony, and what he did say was he did not know what the [S]tate's [A]ttorney's office was planning and that he had not thought about it, didn't know what to expect.

To me, that is fairly clear that he was saying that, again, no offer was made to him by the State, and he had no expectation of what to think was going to happen or any expectation of leniency on behalf of anything that he did testify or otherwise in this case. Secondarily, if you look in evaluating the probative value versus the prejudicial value of your ability to do that in front of a jury, I believe any probative value of that, in terms of what he said as to expectation, is far outweighed by the prejudicial impact that it would have on a jury. I've made another ruling about the offense for which he was convicted and for which he did not register in Maryland, and I weighed that similarly; that in the State of Maryland, based on my understanding of the current state of the law, I did not believe that offense was relevant to the issue of credibility, and I cited the cases and my reasons to do so and, in fact, that the probative value of such a conviction, when weighing all of the elements of it versus the prejudicial impact that it would have on the jury, was similarly situated. And this, my compliments to you on your legal acumen and your four-pronged attack on the purpose of the sexual registration, but I feel that it falls short in this instance and am going to deny your motion and not permit you that cross-examination in this aspect in front of the jury.

On appeal, appellant advances only two of the grounds asserted at the trial court level: first, appellant argues that he should have been permitted to cross-examine White to show bias or a motive to lie in exchange for favorable treatment from the State; and second, evidence of White's failure to register was admissible under Rule 5-608(b) as a prior act probative of truthfulness. We will discuss each ground separately. A. Bias or Motive to Testify Falsely. Maryland Rule 5-616(a)(4) permits witnesses to be impeached by proof that "a witness is biased, prejudiced, interested in the outcome of the proceeding, or has a motive to testify falsely." The rule is a reflection of one aspect of the guarantee contained in both the Sixth Amendment and Article 21 of the Maryland Declaration of Rights of a defendant's right in a criminal case to confront the witnesses against him.

Ebb v. State, 341 Md. 578, 587 , 671 A.2d 974 (1996); Smallwood v. State, 320 Md. 300, 306-08 , 577 A.2d 356 (1990). See also Davis v. Alaska, 415 U.S. 308, 316 , 94 S.Ct. 1105 , 39 L.Ed.2d 347 (1974). However, trial courts retain "wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation ⁵⁶⁶ that is repetitive or only marginally relevant." Ebb, 341 Md. at 587 , 671 A.2d 974 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 , 106 S.Ct. 1431 , 89 L.Ed.2d 674 (1986) and citing Smallwood v. State, 320 Md. 300, 307 , 577 A.2d 356 (1990)). Decisions of the Court of Appeals have established that, where the charge of bias stems from the pendency of criminal charges against a witness, courts should hold an evidentiary hearing outside the presence of the jury to permit the parties to address factors pertaining to the issue whether the probative value of the evidence outweighs the danger of unfair prejudice.

Ebb, 341 Md. at 591 , 671 A.2d 974 ; Jackson v. State, 340 Md. 705, 717 , 668 A.2d 8 (1996); Watkins v. State, 328 Md. 95, 99 , 613 A.2d 379 (1992). As we have discussed, the trial court conducted such a hearing and determined that no offer had been made by the State to White, and that White had neither an expectation as to what the State might do regarding charges against him, nor an expectation of leniency in return for his testimony. The trial court determined that danger of prejudice generated by permitting appellant to cross-examine White regarding the failure to register as a sex offender outweighed its probative value. Appellant argues that the trial court erred in relying on Ebb .

In that case, the Court of Appeals considered whether the trial court abused its discretion in precluding the cross-examination of Timmons and Allen, two prosecution witnesses, with regard to criminal charges pending against them. 341 Md. at 586 , 671 A.2d 974 . In holding that there was no error, the Court explained: As a general rule, pending criminal charges are not admissible to impeach a witness. An exception to that rule, however, is when the pending charges are offered to show bias, prejudice or motive of the witness in testifying. In determining whether to admit the evidence, the judge must engage in a balancing test giving wide latitude to cross-examine for bias or prejudice but not permitting the questioning "to stray into collateral matters which would obscure the trial issues and lead to the factfinder's confusion." The trial judge is in the best position to balance the probative value of the unrelated pending charges against the prejudicial effect and to decide when their admission would enmesh the trial in confusing or collateral issues. * * * * * * On voir dire, Timmons and Allen testified that the State had not offered and that they did not expect leniency in exchange for their testimony.

They denied any expectation of leniency in return for their testimony and there was no basis for any expectation of leniency.... * * * * * * In determining the admissibility of the evidence, the trial judge considered the testimony of the witnesses, i.e., that they were not offered and did not expect leniency. He made a preliminary finding that based on the denial of the witnesses and the uncontroverted representation of the prosecutor that there was no offer of leniency, there was a complete lack of probative value or that the value for impeachment was so slight as to be overcome by the probability that the testimony would be unduly prejudicial or confusing to the jury. This we believe, is a proper matter for the trial court's discretion. Id. 341 Md. at 588-591 , 671 A.2d 974 (citations omitted). ⁵⁶⁷ Appellant attempts to distinguish Ebb on the basis that the witnesses in that case affirmatively denied expecting anything in return for their testimony, 341 Md. at 583 , 671 A.2d 974 , whereas White "equivocated multiple times....

Such ... hesitant response[s] could not possibly dismiss any fear of White's bias and/or motive to lie. In light of White's dubious response, the trial court erred in preventing [appellant] from cross-examining White on this matter in the presence of the jury." Appellant's argument is not persuasive. White's testimony established, to the satisfaction of the trial court, that the State had made no offer to White and, in the words of the trial court, that White had "no expectation of what to think was going to happen or any expectation of leniency...." Certainly implicit in the trial court's finding was an assessment of the credibility of White's testimony on the issue. Where, as in an in limine hearing, no jury is involved, we will not set aside a trial court's factual finding unless it is clearly erroneous and we give due regard to the trial court's ability to assess the credibility of witnesses.

Maryland Rule 8-131(c). As Judge Moylan explained for this Court in Morris v. State, 153 Md.App. 480 , 837 A.2d 248 (2003): The most basic rule of appellate review of fact-finding is that of extending great deference to the fact finder, be it judge or jury. Appellate judges do not see or hear the witnesses or have the benefit of any sort of non-verbal communication. They are relatively far less able to assess credibility than are the fact finders on the scene.

Appellate judges, moreover, are not immersed in the local context and do not get the sometimes inexpressible "feel" of the case. They are relatively far less able to weigh the evidence than are the fact finders on the scene. The basic rule of fact-finding review, therefore, is that the appellate court will defer to the fact-findings of trial judge or jury whenever there is some competent evidence which, if believed and given maximum weight, could support such findings of fact. That is the prime directive.

Id. at 489 , 837 A.2d 248 . We will not disturb the trial court's finding that White had no expectation of leniency arising out of his testimony. We conclude that the trial court did not abuse its discretion in determining that the prejudicial effect of evidence regarding White's failure to register as a sex offender outweighed any possible probative value. Ebb, 341 Md. at 588 , 671 A.2d 974 .

B. An Act "Probative of Truthfulness." Appellant also contends that evidence of White's failure to register was admissible under Rule 5-608(b) as a prior act probative of truthfulness, or, rather, the lack thereof. Rule 5-608(b) provides: (b) Impeachment by examination regarding witness's own prior conduct not resulting in convictions. The court may permit any witness to be examined regarding the witness's own prior conduct that did not result in a conviction but that the court finds probative of a character trait of untruthfulness. Upon objection, however, the court may permit the inquiry only if the questioner, outside the hearing of the jury, establishes a reasonable factual basis for asserting that the conduct of the witness occurred.

The conduct may not be proved by extrinsic evidence. Appellant contends that "White's failure to register as a sex offender was an act of deception and, as such, is an act that is probative of untruthfulness." He suggests that, since it was uncontroverted that White was required to register as a sex offender and had not done so, a "reasonable ⁵⁶⁸ factual basis" exists for an inquiry. Appellant also asserts that, if White had been convicted of failure to register as a sex offender, the conviction would likely have been admissible, pursuant to Md. Rule 5-609, as a crime relevant to witness credibility because a failure to register necessarily involves an act of deception. The crux of appellant's argument is that White's failure to register was effectively a series of misrepresentations to the State of Maryland and that act (or acts) of deception is probative of untruthfulness.

Appellant seeks support in Maryland case law interpreting Rule 5-609, which pertains to the admissibility of evidence of prior crimes for impeachment purposes. [6] Appellant argues that in Ricketts v. State, 291 Md. 701, 713 , 436 A.2d 906 (1981), the Court of Appeals held that the name of an impeachable offense, in the words of appellant, "must immediately communicate to the jury the past act the witness committed and must obviously and directly bear on the witness' credibility." Appellant continues that, if White had been convicted of failing to register, the conviction would "most likely have been admissible, pursuant to Md. Rule 5-609" for impeachment purposes. Finally, appellant contends that the trial court erred in determining that the prejudicial effect of the evidence outweighed its probative value. For its part, the State argues that White's failure to register as a sex offender is not probative of truthfulness because "there may be any number of reasons for a person's failure to register" and White, at the in limine hearing, did not testify as to why he had not registered out of a concern regarding his privilege against self-incrimination. [7] ⁵⁶⁹ Both sides point to cases from other jurisdictions to support their contentions. The State cites United States v. Montgomery, 390 F.3d 1013, 1016 (7th Cir.2004), State v. Young, 378 S.C. 101 , 661 S.E.2d 387, 388 (2008), and People v. Barner, 374 Ill.App.3d 963 , 313 Ill.Dec. 122 , 871 N.E.2d 849 (2007), for the proposition that failure to register as a sex offender is not a crime reflecting upon a witness' credibility.

We approach these cases with some degree of reservation. All three courts were applying Federal Rule of Evidence 609(a), [8] or substantively similar state rules. Fed.R.Evid. 609, and its state law equivalents, allows all convictions, regardless of their nature, having a maximum penalty of more than one year's imprisonment, to be used to impeach a witness. If the witness is not a criminal defendant, the court utilizes a balancing test functionally equivalent to that set out in Maryland Rule 5-609(a)(2).

If the witness is a criminal defendant, the balancing test focuses exclusively upon prejudicial effect to the defendant. See 6 L. McLain MARYLAND LAW OF EVIDENCE § 609.6 at 538. In contrast, under Maryland Rule 5-609(a), the "universe of convictions," State v. Giddens, 335 Md. 205, 213 , 642 A.2d 870 (1994), that can be used to impeach a witness's credibility, is limited to "infamous crimes" (common law felonies and the common law crimen falsi ) and crimes that are relevant to the witness' credibility. State v. Westpoint, 404 Md. 455, 478 , 947 A.2d 519 (2008); Jackson v. State, 340 Md. 705, 712-13 , 668 A.2d 8 (1995).

In order to fall into the second category: the crime itself, by its elements, must clearly identify the prior conduct of the witness that tends to show that he is unworthy of belief. Moreover, a crime tends to show that the offender is unworthy of belief, if the perpetrator "lives a life of secrecy" and engages in "dissembling in the course of [the crime], being prepared to say whatever is required by the demands of the moment, whether the truth or a lie." Westpoint, 404 Md. at 484 , 947 A.2d 519 (internal citations omitted) (quoting Giddens, 335 Md. 205 , 642 A.2d 870 ). With this distinction in mind, we turn to the specific cases cited by the State. Young did not address the admissibility of a conviction for failure to register; the court simply noted in passing that the trial court excluded evidence of a conviction for failure to register, "finding that it was not ⁵⁷⁰ a crime of dishonesty under [South Carolina Rule of Evidence] 609(a)(2), and that although the crime was punishable by imprisonment in excess of one year, the prejudicial effect of the conviction outweighed its probative value...." Young, 661 S.E.2d at 388 n. 1.

In Montgomery , the defendant had six prior felony convictions including one for unlawful failure to register as a sex offender. 390 F.3d at 1016 . The District Court found that, with the exception of an obstruction of justice conviction, none of the convictions went to the defendant's truthfulness but admitted all six for impeachment purposes nonetheless. On appeal, the defendant argued that the District Court erred by doing so; in determining that the District Court did not abuse its discretion, the Circuit Court of Appeals did not single out the failure to register conviction for special analysis. Id. at 1016 .

In Barner , the defendant was tried in 2004 on rape charges. 374 Ill.App.3d at 964 , 313 Ill.Dec. 122 , 871 N.E.2d 849 . The trial court permitted him to be impeached with a 1999 conviction for failure to register as a sex offender. Id. at 968 , 313 Ill.Dec. 122 , 871 N.E.2d 849 . On appeal, the issue was not whether the failure to register conviction was probative of the defendant's credibility but rather whether the trial court abused its discretion in admitting the conviction because, by so doing, it permitted the prosecution to bring to the jury's attention that the defendant had a prior sex crime conviction.

Id. The appellate court determined that the trial court did not abuse its discretion, id. at 972 , but, again, without discussing whether failure to register was relevant to the defendant's credibility. [9] United States v. Easter, 66 F.3d 1018 (9th Cir.1995), is more instructive. In that case, the appellant argued that the District Court erred by not allowing the cross-examination of Oliver, a government witness, on the subject of his failure to register as a sex offender. The defendant argued that "Oliver's desire to avoid potential punishment for this failure could have furnished Oliver with a substantial motivation to testify for the [g]overnment." Id. at 1022 .

The Circuit Court of Appeals affirmed the conviction, holding that the District Court did not abuse its discretion in not permitting the cross-examination. Id. First, the Circuit Court of Appeals noted that the District Court permitted cross-examination on other matters that impeached Oliver's credibility. Id.

In addition, the Circuit Court of Appeals stated: Trial judges have "wide latitude" in determining the proper scope of cross examination. Delaware v. Van Arsdall, 475 U.S. 673, 679 , 106 S.Ct. 1431 , 89 L.Ed.2d 674 (1986); see also United States v. Lopez, 885 F.2d 1428, 1438 (9th Cir.1989) ("broad discretion"). Two factors the trial judge can consider are relevance and prejudice. Van Arsdall, 475 U.S. at 679 , 106 S.Ct. 1431 ; Lopez, 885 F.2d at 1438 .

In the present case, the potential prejudice of describing a witness as a sex offender, who has not registered as such, is obvious. The countervailing relevance, if any, was minimal. Id. A common thread through these cases, and the Maryland cases as well, is that, even if impeachment evidence is otherwise ⁵⁷¹ admissible, the trial court must also exercise its discretion to determine if the probative value of the evidence outweighs its prejudicial effect.

See Maryland Rule 5-609(a); Westpoint, 404 Md. at 478 , 947 A.2d 519 ; Giddens, 335 Md. at 214 , 642 A.2d 870 ; Fulp v. State, 130 Md.App. 157, 168-69 , 745 A.2d 438 (2000). Turning to the case before us, White had not been charged, much less convicted, of failing to register. White had registered in both South Carolina and the District of Columbia, where he was residing at the time. He had been working in Maryland for only three weeks prior to the incident giving rise to the charges against appellant.

The trial court had ruled that the underlying crime (assault with intent to commit sexual conduct) that required White to register was not itself relevant to credibility under Maryland law. Additionally, the trial court permitted appellant to attack White's credibility through cross examination as to White's civil claim against appellant and Prince George's County as well as his prior convictions for grand larceny, receiving stolen goods, and first degree burglary. In light of these factors, the trial court determined that the prejudicial effect of permitting cross examination outweighed its probative value. We will not disturb the trial court's ruling absent an abuse of discretion, Merzbacher v. State, 346 Md. 391, 405 , 697 A.2d 432 (1997) (citing Hunt v. State, 321 Md. 387, 425 , 583 A.2d 218 (1990) and 5 L. McLain MARYLAND LAW OF EVIDENCE § 403.1 at 297 (1987 ed.)), and we find none here.

See Easter, 66 F.3d at 1022 .

III

Did the Trial Court Err in Permitting the State to Elicit the Hearsay Statement that Appellant Was "Looking for a Fight," as a Present Sense Impression? Prior to White's taking the stand, the State requested that the trial court rule whether a statement made by Brandon Clark to White to the effect that appellant was "looking for a fight" was admissible under Maryland Rule 5-803(b)(1) [10] as a statement of Clark's present sense impression. The following ensued: [THE STATE]: Robert White, I'm proffering this, is going to testify that, when he was in the Marlo truck out in front of [appellant's] home, Brandon Clark went to the door, met with [appellant], and Clark was able to see—or White was able to see that. And then he came back, Clark came back to the truck and said something to the effect of ["]man, this guy is looking for a fight.["] Our position—of course, Brandon Clark can't be here to testify.

He's unavailable. Our position is that it's a present sense impression. It was Brandon Clark's impression of [appellant] immediately after having contact with him, immediately after perceiving him and meeting with him. [DEFENSE COUNSEL]: Your Honor, we object to it. First of all, there won't be cross-examination of Brandon Clark. ⁵⁷² So it is a statement that Robert White is allowed to make without any kind of cross-examination.

And there is two relevant layers of hearsay. First of all, what the statement actually is it's an interpretation—it comes from Robert White. There's no corroboration of it. But it's an interpretation—it's Brandon Clark's interpretation, his opinion about [appellant's] state of mind, and that's not admissible.

They argue it's a present sense impression, but it's really an opinion about an interaction about which we know nothing, and that's not admissible. And then relaying that to Mr. White doesn't make it admissible either. * * * * * * THE COURT: I believe ... we have in this particular matter provided by the Maryland Rules 5-803(b)(1), which gives present senses impression as a statement describing or explaining an event or condition, even while the declarant was perceiving the event or condition. This rule seems to be entirely consistent with the case law, and the declarant, without any motivation to falsify, described an event he is observing at that very moment or shortly thereafter. That appears to be the setting here.

The State is proffering that the statement to be made was prior to any shooting that later occurred in the house. I believe that this falls squarely within the confines of Booth versus State, [ 306 Md. 313, 331 , 508 A.2d 976 (1986),] ... as a present sense impression statement made by an unavailable declarant. * * * * * * I have weighed the impact of the statement, in terms of the probative value of it, balancing it against the possible prejudicial impact that it may have on the jury, and I find that the probative value far outweighs the prejudicial impact of this. * * * * * * THE COURT: [Y]ou're entitled, certainly, to cross-examine [White] about when that statement was made to him and all of the circumstances surrounding it, but I believe this is a classic present sense impression. [DEFENSE COUNSEL]: And would we be also entitled to cross-examine him about the manner in which and the timing about when he brought that statement to light? THE COURT: Well, that's certainly within your purview. (Emphasis added.) The jury returned to the courtroom and White took the stand and testified: [THE STATE]: Robert, on January 24th, do you remember, approximately, the time it was that you arrived to do the last delivery? [THE WITNESS]: I'm not sure what time it was.

It was late. [THE STATE]: Who was driving the truck? [THE WITNESS]: Brandon [Clark] was. [THE STATE]: What happened when you arrived at Shellford Lane? [THE WITNESS]: Well, before we got to that lane, we actually called the customer to see if he was home, because it was getting dark or dark, and we asked him could he either come outside or turn a light on; we wasn't far away from his house. When we arrived, the customer was standing outside. Brandon gets out of the truck, goes to talk to the customer comes back and says— ⁵⁷³ [DEFENSE COUNSEL]: Your Honor, I object to the narrative here. [THE COURT]: I believe the witness can explain it as he wishes. [THE STATE]: Continue as to when Brandon got out of the truck. [THE WITNESS]: Brandon gets out of the truck, goes up to talk to the customer, comes back and said, "The guy's looking for a fight." I said, "Brandon, let's go. Well, let's just leave." He said we couldn't do that; we have to call our supervisor.

(Emphasis added.) Appellant did not object to White's response nor did he move to strike it. While appellant cross-examined White extensively, he did not ask him any questions regarding the circumstances surrounding Clark's statement. On appeal, appellant contends that the statement was impermissible hearsay. In response, the State argues that the issue was not preserved for appellate review because appellant's trial counsel failed to object to the substance of White's response when White testified as to the hearsay statement.

Alternatively, the State contends that White's testimony was admissible as a "present sense impression" pursuant to Maryland Rule 5-803(b)(1). We conclude that, although the question is a close one, appellant preserved the issue for appellate review. However, the trial court did not err in admitting the controverted testimony. We will address each issue separately.

A. The issue here is whether appellant's trial counsel's statement "Your Honor, I object to the narrative here," coupled with his opposition to the State's in limine motion, was sufficient to preserve the issue of the admissibility of White's testimony regarding Clark's statement for appellate review. As a general rule, when a court rules in an in limine proceeding that evidence is admissible, Rule 4-323(a) requires that the party opposed to admission object at the time the evidence is actually offered in order to preserve the issue for appellant review. Reed v. State, 353 Md. 628, 639-40 , 728 A.2d 195 (1999); Prout v. State, 311 Md. 348, 356-57 , 535 A.2d 445 (1988) (interpreting predecessor rule). The Court of Appeals recognized an exception to the general rule in Watson v. State, 311 Md. 370 , 535 A.2d 455 (1988).

In Watson , the defendant filed a motion in limine requesting the court to determine whether his prior convictions for attempted rape and theft were admissible to impeach his credibility in the event he testified. The court ruled that both convictions were admissible. Id. at 371-72 , 535 A.2d 455 . After the defendant completed his testimony on direct examination, the State informed the court that it intended to cross-examine the defendant on both convictions.

The court reiterated its ruling that evidence of the attempted rape conviction was admissible and the defendant did not object to the State's questions on the subject. Id. at 372 , 535 A.2d 455 . The Court of Appeals held that the issue was preserved for review: In the case sub judice, the trial judge ruled prior to trial on the motion in limine to admit Watson's prior convictions. Thus, standing alone, Watson's objection to the trial court's pretrial ruling would be insufficient to preserve his objection for our review.

However, the trial judge reiterated his ruling immediately prior to the State's cross-examination of Watson. It was during this cross-examination that the State elicited Watson's prior convictions. As we see it, requiring Watson to make yet another ⁵⁷⁴ objection only a short time after the court's ruling to admit the evidence would be to exalt form over substance. Id. 311 Md. at 372, n. 1, 535 A.2d 455 .

The Watson exception is a narrow one. Reed, 353 Md. at 636 n. 4, 728 A.2d 195 (" Watson was limited to its specific circumstances...."); see also Clemons v. State, 392 Md. 339, 362-63 , 896 A.2d 1059 (2006) (issue of admissibility of scientific evidence preserved for appellate review pursuant to Watson when counsel stated grounds prior to voir dire examination of expert witness but did not restate them after examination was concluded). The facts in the instant appeal are not fully analogous to Watson . In the case at bar, the trial court's ruling came before, not during, White's testimony and the trial court did not reiterate its ruling.

However, appellant's counsel did object. Although counsel's objection did not expressly refer to the grounds asserted in the in limine hearing, that hearing had concluded only minutes before. The phrase "the narrative here" can be interpreted to refer to the substance, as well as the style, of White's testimony. In light of the close temporal proximity between the trial court's ruling on the motion in limine and White's testimony, we will resolve the ambiguity in favor of the appellant and consider the issue preserved for review.

B. Appellant presents us with alternative grounds to conclude that the trial court erred. Appellant's first contention is that an unknown amount of time elapsed between Clark's conversation with appellant and Clark's statement to White that appellant was "looking for a fight." In light of this, appellant argues that the trial court erred in determining that Clark's statement to White reflected a present sense impression: Based on the record in this case, enough time elapsed for Clark to walk an unknown distance [11] from the house to the van to speak with White. During that time, any number of things (that we can never know) may have crossed the declarant's mind, causing him to mislead his companion. Appellant did not present the issue of lapse of time to the trial court.

Since appellant raised specific contentions as to why the testimony was inadmissible, which did not include the issue of a possible lapse in time with the trial court, he is foreclosed from raising that issue for the first time on appeal. Lee v. State, 186 Md.App. 631, 669 , 975 A.2d 240 (2009); State v. Jones, 138 Md.App. 178, 218 , 771 A.2d 407 (2001) ("[W]hen particular grounds for an objection are volunteered or requested by the court, `that party will be limited on appeal to a review of those grounds and will be deemed to have waived any ground not stated.)'" (quoting Leuschner v. State, 41 Md.App. 423, 436 , 397 A.2d 622 , cert. denied, 444 U.S. 933 , 100 S.Ct. 279 , 62 L.Ed.2d 192 (1979)); Jeffries v. State, 113 Md.App. 322, 341 , 688 A.2d 16 , cert. denied, 345 Md. 457 , 693 A.2d 355 (1997) ("`[W]hen the grounds for an objection are stated by the objecting party, either on a volunteered basis or at the request of the court, only those specifically stated are ⁵⁷⁵ preserved for appellate review; those not stated are deemed waived.'") (quoting Banks v. State, 84 Md.App. 582, 588 , 581 A.2d 439 (1990)). Appellant also contends that Clark's statement reflected not a present sense impression but rather an opinion as to appellant's state of mind: Most significant to the analysis of the putative "present sense impression" in this case is the nature of Clark's statement. His statement was an opinion of [appellant's] state of mind.

Moreover, although the words "he is looking for a fight" suggest that Clark personally observed [appellant's] demeanor, it is impossible to verify on what basis Clark made his speculative opinion of [appellant's] state of mind. The leading case in Maryland on the present sense impression exception to the hearsay rule is Booth v. State, 306 Md. 313 , 508 A.2d 976 (1986). In Booth , the Court of Appeals surveyed previous Maryland cases, scholarly works and authority from other jurisdictions, id. at 317-23 , 508 A.2d 976 , and concluded: As observed by the Advisory Committee to the Federal Rules, the "excited utterance" and "present sense impression" exceptions "overlap, though based on somewhat different theories." Advisory Committee Note, Fed.R.Evid. 803(1). The underlying rationale of the two exceptions are similar, i.e., both preserve the benefit of spontaneity in the narrow span of time before a declarant has an opportunity to reflect and fabricate.

We conclude that the "present sense impression" exception to the hearsay rule rests upon a firm foundation of trustworthiness, and we adopt it in the form in which it appears at Fed.R.Evid. 803(1). [12] Id. 306 Md. at 324 , 508 A.2d 976 . The Court proceeded "to a consideration of practical problems that may be encountered in the application of this exception." Id. The Court of Appeals identified three such problems: Initially, we consider the question of requisite spontaneity. Although statements offered under this exception will usually be those made at the time an event is being perceived, we recognize that precise contemporaneity is not always possible, and at times there may be a slight delay in converting observations into speech.

However, because the presumed reliability of a statement of present sense impression flows from the fact of spontaneity, the time interval between observation and utterance must be very short. The appropriate inquiry is whether, considering the surrounding circumstances, sufficient time elapsed to have permitted reflective thought. See McCORMICK ON EVIDENCE § 298, at 862 (3d ed. E. Cleary 1984).

In the words of Professor Jon Waltz, "absent some special corroborative circumstance, there should be no delay beyond an acceptable hiatus between perception and the cerebellum's construction of an uncalculated verbal description." Waltz, THE PRESENT SENSE IMPRESSION EXCEPTION TO THE RULE AGAINST HEARSAY: ORIGINS AND ATTRIBUTES, 66 Iowa L.Rev. 869, 880 (1981). 306 Md. at 324 , 508 A.2d 976 . As we previously noted, the appellant failed to raise the issue of "requisite spontaneity" with the trial court. Moreover, as noted in footnote 11 of this opinion, a photograph of the exterior of the Washington residence taken on the night of the ⁵⁷⁶ shootings shows the delivery van parked a short distance from the front door to the home. White testified that, when they arrived, "Brandon gets out of the truck, goes up to talk to the customer, comes back and said," "The guy's looking for a fight." The journey back to the truck could not have taken more than a few seconds and there is nothing in White's testimony to suggest that Clark paused to reflect.

While the sequence of events lacked the speed of the neurological process suggested by Professor Waltz, there was a "special corroborative circumstance" in this case; namely, White's own testimony as to appellant's state of mind, which was received shortly thereafter without objection: [THE WITNESS]: When we went inside, he direct [sic] us to a bedroom upstairs. I was walking first, in front of Brandon. Brandon was walking behind me. He was behind Brandon, and he directed us to a bedroom upstairs.

We went in, we set the rails down, and then Mr. Washington started arguing with Brandon. [THE STATE]: And what was Mr. Washington arguing with Brandon about? [THE WITNESS]: Because, I guess, we got to his house late, and he was upset because he was waiting to his house all day. [13] The second issue identified in Booth was "the extent