Winston, Mayhew & Cannon v. State

Panel: Meredith, Graeff, Arthur, JJ. Arthur, J. ⁵⁵⁰ In this consolidated appeal, appellants Stanley Winston, Brian Mayhew, and Anthony Cannon challenge their convictions for first-degree murder and other related offenses. The convictions resulted from a multi-week jury trial in which the appellants were tried jointly for killing Mayhew's uncle, Nicoh Mayhew, in order to prevent him from testifying against Mayhew in another murder case. 1 Because the circuit court did not err or abuse its discretion, we affirm. FACTUAL AND PROCEDURAL HISTORY A. The Murder of Nicoh Mayhew On the morning of December 19, 2012, Cynthia Dinkins-Mayhew awoke to the sound of gunshots.

When she heard her ⁵⁵¹ two-year-old grandson, M., crying outside of her apartment, she opened the front door. She saw her son, Nicoh, lying dead on the floor of the breezeway and her grandson sitting in a pool of blood with a ⁶⁴⁹ gunshot wound to his arm. She grabbed the child and took him back into the apartment. Police officers arrived and questioned Ms. Dinkins-Mayhew.

She identified Brian Mayhew as a suspect, because Nicoh was scheduled to appear as a witness against him for the murders of Sean Ellis and Anthony McKelvin. Oscar Saravia, a maintenance worker, was near Ms. Dinkins-Mayhew's apartment building at the time of the shooting. Through an interpreter, he testified that he saw two "slender ... black" men in the parking lot "with gray, black jackets" and hoods covering their faces. The men "were observing the guy with his child ... and waited for him to get out of the car with the boy[.]" When Nicoh and his son were walking towards Ms. Dinkins-Mayhew's apartment building, Mr. Saravia said, "they started running out with a gun in hand." He heard gunshots and yelling.

His account was corroborated by video surveillance footage, which was played for the jury. 2 The surveillance video shows one of the men inspecting Ms. Dinkins-Mayhew's gold Hyundai seconds before Nicoh and his son arrived in a white Kia. In a recorded telephone call that Mayhew made from jail before Nicoh's murder, he had told Winston and Cannon that Ms. Dinkins-Mayhew had a gold Hyundai that was "banged up in the front." In another jailhouse call, on the day before the murder, Mayhew instructed Cannon to wait near the gold car in front of the apartment. In the same call, Mayhew used coded language ("a white girl named Kia"), to tell Cannon and Winston that Nicoh would arrive in a white Kia. Mayhew attempted to conceal his participation in the jailhouse calls in several ways.

First, he used another detainee's ⁵⁵² identification number to place the calls. Second, he would typically call his girlfriend, Asha Smythe, who would connect him via a third-party call to Cannon, Winston, and others, thereby preventing the authorities from learning the telephone numbers of the persons with whom he was speaking. The State introduced text messages in which Winston had instructed Smythe about how to set up the third-party calls. 3 In one jailhouse call, a week before Nicoh's murder, Mayhew instructed Winston and Cannon to "[c]hill until you see something and then we snap it up." Mayhew gave a description of where he wanted "this incident to happen," which coincided with a description of the outside of Ms. Dinkins-Mayhew's apartment ("[t]he first flight up, ... straight back to your right"). In another call, Mayhew said something about "9 to 11," which was a reference to when Nicoh would arrive with his son at his mother's apartment. 4 On December 16, 2012, three days before the murder, Mayhew spoke to Nicoh and told him, "Nicoh, I love you." Six minutes after the call ended, Mayhew called Winston to discuss the hit on Nicoh.

In a call on the day before the murder, Mayhew instructed Winston to coordinate a three-way call with Cannon. During that ⁶⁵⁰ call, Mayhew said that it was "show time tomorrow." In that same call, one of the participants referred to "S and W," meaning "Smith & Wesson." In yet another call, which appears from its context to have occurred after the murder, one of the participants made an oblique reference to Nicoh's son, M., saying, "It didn't get in the way." ⁵⁵³ The State introduced evidence showing that within 10 minutes of the murder Cannon's telephone 5 used cell phone towers near Ms. Dinkins-Mayhew's apartment in Seat Pleasant. That phone had not used those towers at all in the two months before the murder. After the murder, Cannon and Winston exchanged text messages in which they included a picture of a Washington Post article about the murder.

B. The Murders of Sean Ellis and Anthony McKelvin The State alleged that Mayhew had conspired with Cannon and Winston to kill Nicoh because he wanted to prevent Nicoh from testifying against him in a criminal case in which he was charged with murdering Sean Ellis and Anthony McKelvin. Ellis and McKelvin had been shot to death on May 30, 2011. Days later, after the police had identified Nicoh as an accessory, he gave a recorded statement and testified before the grand jury that indicted Mayhew for the murders. See Mayhew v. State , No. 475, Sept. Term 2014, 2015 WL 5885170 (filed Aug. 19, 2015), http://mdcourts.gov/appellate/unreportedopinions/2015/0475s14.pdf.

Mayhew's trial for the Ellis and McKelvin murders was scheduled to begin in February 2013, a few weeks after Nicoh was killed. 6 C. Witness Intimidation While awaiting trial for the murders of Ellis and McKelvin, Mayhew and his co-defendant, Kenan Myers, were jailed at the Prince George's County Detention Center. Nicoh's brother was jailed in the same housing unit at that time. ⁵⁵⁴ On November 27, 2012, Nicoh visited his brother at the detention center. During the visit, Mayhew and Myers were also in the visitor area. Mayhew asked the correctional officer if he could talk to Nicoh.

The officer permitted him to do so and observed Mayhew, Myers, and Nicoh talking to each other for about a minute. After his visit to the jail, Nicoh's girlfriend described him as "scared, more paranoid ... [and] [w]orried that somebody was, like, going to do something to him." Nicoh's mother similarly described Nicoh as "scared." She added that he "didn't want to leave the baby." 7 In a jailhouse call, one of the conspirators remarked that Nicoh was "camouflaging" himself ("you're dealing with a dude who be camouflaging for real"). In the months leading up to Mayhew's trial for the Ellis and McKelvin murders, the lead detective had difficulty locating Nicoh. The detective had to call Nicoh's mother or girlfriend in order to reach him.

According to the detective, Nicoh appeared to be avoiding him. ⁶⁵¹ Nicoh was scheduled to meet with the detective during the week after Christmas. He was gunned down on December 19, 2012. D. The Trials The case against Cannon, Mayhew, and Winston initially went to trial on June 29, 2015. The jury, however, was unable to reach a verdict.

Consequently, on July 8, 2015, the court declared a mistrial. The State elected to retry Cannon, Mayhew, and Winston, and a second trial began on February 1, 2016. After nine days of testimony, the jury returned a verdict of guilty on all counts. The court sentenced Mayhew to life imprisonment without the possibility of parole, plus a consecutive 105 years (of which ⁵⁵⁵ 10 were to be served without the possibility of parole). 8 The sentences were to run concurrently with the sentence of life imprisonment plus 20 years that the court had previously imposed on Mayhew for the murders of Ellis and McKelvin.

The court sentenced Cannon and Winston to life imprisonment, plus a consecutive 105 years (of which 10 were to be served without the possibility of parole). 9 The sentences were to run consecutively to any other sentences that Cannon and ⁵⁵⁶ Winston were serving. 10 Winston, Mayhew, and Cannon noted timely appeals. We shall provide additional facts as necessary in our discussion of some of the issues presented. QUESTIONS PRESENTED In this consolidated appeal, Cannon, Winston, and Mayhew present a total of seven issues. ⁶⁵² Cannon presents the following two questions: 1. Did the circuit court err in denying motions for severance? 2.

Did the circuit court err in admitting "other crimes" evidence concerning the Ellis and McKelvin murders? 11 Cannon and Winston both present two additional questions: 3. Did the circuit court err in admitting recordings of jailhouse calls without proper authentication? 4. Did the circuit court err in admitting hearsay statements under the co-conspirator exception when the State has not specified when the conspiracy began? Mayhew joins in Question 3 (regarding the authentication of the recordings) and presents two additional questions: 5.

Did the circuit court err in denying a motion for a mistrial when the State allegedly violated an earlier evidentiary ruling by playing a recording, made after the conspiracy had ended, of Cannon saying Winston's name? ⁵⁵⁷ 6. Did the circuit court err in overruling an objection to the State's argument, in rebuttal closing, that Mayhew had threatened to injure Nicoh's child, M.? Finally, Cannon and Mayhew, but not Winston, question whether the evidence was insufficient to support their convictions. For the reasons that follow, we answer all questions in the negative.

Consequently, we shall affirm the convictions against Winston, Mayhew, and Cannon. DISCUSSION I. SEVERANCE After the cases against the three co-conspirators were joined, Cannon and Winston moved to sever the cases against them from the case against Mayhew. As the basis for their motion, Cannon and Winston principally cited the circuit court's decision to permit the State to introduce details about the murder of Ellis and McKelvin, in which Mayhew alone was implicated. The circuit court denied the motion to sever.

In criminal trials, issues of joinder and severance are governed by Rule 4-253. That rule permits the joinder of related charges against multiple defendants, as well as the joinder of multiple charges against a single defendant. "If it appears," however, "that any party will be prejudiced by the joinder for trial of counts, charging documents, or defendants, the court may, on its own initiative or on motion of any party, order separate trials of counts, charging documents, or defendants, or grant any other relief as justice requires." Md. Rule 4-253(c). In attacking the circuit court's decision not to order separate trials of the charges against him and the charges against Mayhew, Cannon begins his analysis with McKnight v. State , 280 Md. 604 , 375 A.2d 551 (1977).

McKnight is inapposite, because it concerns the joinder of multiple charges against a single defendant, not the joinder of related charges against multiple defendants. ⁵⁵⁸ McKnight held that in a jury trial "a defendant charged with similar but unrelated offenses is entitled to a severance where he establishes that the evidence as to each individual offense would not be ⁶⁵³ mutually admissible at separate trials." Id. at 612 , 375 A.2d 551 . In reaching its decision, the Court explained that, "where offenses are joined for trial because they are of similar character, but the evidence would not be mutually admissible, the prejudicial effect is apt to outweigh the probative value of such evidence." Id. at 610 , 375 A.2d 551 . On the other hand, "[w]here evidence of one crime would be admissible at a separate trial on another charge, a defendant will not suffer any additional prejudice if the two charges are tried together." Id. McKnight has been interpreted to mean that it is per se prejudicial not to sever multiple charges against a single defendant unless the evidence as to each individual offense would be mutually admissible in separate trials.

State v. Hines , 450 Md. 352 , 371, 148 A.3d 1247 (2016). Based on the questionable premise that no evidence of the Ellis and McKelvin murders would have been mutually admissible against him if he were tried separately for his role in Nicoh's murder, Cannon contends that the circuit court erred in denying his motion for severance. His argument fails, first, because mutual inadmissibility mandates severance only in cases that involve the joinder of multiple charges against a single defendant, not in cases involving the joinder of related charges against multiple defendants. In cases like this, which involve the joinder of related charges against multiple defendants, a different standard applies.

See State v. Hines , 450 Md. at 372 -76 , 148 A.3d 1247 . If the State introduces evidence that is inadmissible against one of several co-defendants, it is conceivable that that defendant may suffer no unfair prejudice, because the evidence may not "implicate or even pertain to that defendant." Id. at 375-76 , 148 A.3d 1247 . Hence, in cases involving several co-defendants, the trial judge is not required to order a severance merely because some evidence would not be mutually admissible against every co-defendant; instead, the judge must ⁵⁵⁹ "determine whether the admission of such evidence will cause unfair prejudice to the defendant who is requesting a severance." Id. at 369 , 148 A.3d 1247 ; see id. at 376 , 148 A.3d 1247 ("the defendant must show that non-mutually admissible evidence will be introduced and that the admission of such evidence will result in unfair prejudice") (emphasis in original). If those two conditions are met, the judge must then "use his or her discretion to determine how to respond to any unfair prejudice caused by the admission of non-mutually admissible evidence." Id. at 369-70 , 148 A.3d 1247 .

"The Rule permits the judge to do so by severing the offenses or the co-defendants, or by granting other relief, such as, for example, giving a limiting instruction or redacting evidence to remove any reference to the defendant against whom it is inadmissible." Id. at 370 , 148 A.3d 1247 . Cannon is incorrect in asserting that the evidence of the Ellis and McKelvin murders would have been categorically inadmissible against him had he been afforded a separate trial: the murders of Ellis and McKelvin were relevant to explain his motive for conspiring with Winston and Mayhew to kill Nicoh, the person who had testified against Mayhew in those murders. Cannon did not suffer unfair prejudice from the admission of relevant evidence concerning his motivation for the criminal conspiracy. 12 ⁶⁵⁴ Cannon appears to argue that some details of the Ellis and McKelvin murders would not have been admissible against him in a separate trial, or perhaps that the details were unfairly prejudicial to him. To the extent that he advanced such an argument below, however, the circuit court responded appropriately.

In instructing the jury, the court stated that "[s]ome of the evidence was admitted against one defendant, ⁵⁶⁰ Brian Mayhew[,] and not against the other defendants, specifically evidence related to the charges against Mr. Mayhew for the murder of Sean Ellis and Anthony McKelvin." The court went on to instruct the jurors that they "must consider such evidence only as it relates to the defendant against whom it was admitted, that being Mr. Mayhew[,] and not as to Mr. Cannon or Mr. Winston." As the State observes, this cautionary instruction actually gave Cannon more protection than he deserved, because it could be read to imply that no evidence of the Ellis and McKelvin murders was admissible against him for any purpose-even for the purpose of proving his motivation to conspire with Mayhew and Winston to murder Nicoh. 13 In some circumstances, a cautionary instruction may not adequately protect a defendant from the risk of unfair prejudice resulting from the introduction of evidence that is admissible only against a co-defendant. For example, in State v. Hines , 450 Md. at 383 -34 , 148 A.3d 1247 , the Court held that a cautionary instruction could not adequately protect Hines from the unfair prejudice that he suffered when the State played a video-recording of an interrogation, in which his co-defendant repeatedly told obvious lies to conceal Hines's involvement in their crimes, and the investigators repeatedly insinuated that the co-defendant was lying to protect Hines. ⁵⁶¹ Because "it would have been practically impossible for the jurors" to disregard the inadmissible evidence in which the co-defendant and the investigators repeatedly implicated Hines, the Court held that the circuit court should either have redacted those portions of the interrogation or severed the trials. Id. In this case, by contrast, Cannon offers little basis to conclude that the cautionary instruction, which was already broader than he was entitled to receive, was insufficient to protect him from the danger of unfair prejudice.

Unlike the inadmissible evidence in Hines , the evidence of the details of the Ellis and McKelvin murders did not implicate Cannon in those crimes ⁶⁵⁵ in any way. To the contrary, the evidence focused on Mayhew's role, including the extent to which Nicoh's testimony would have established Mayhew's guilt. The Court's concerns in Hines are not present in this case. In summary, the circuit court did not abuse its discretion in declining to sever Cannon's case from Mayhew's on account of the evidence concerning the murders of Ellis and McKelvin.

At least some of the evidence unquestionably would have been admissible in separate trials. Furthermore, to the extent that some details of the murders might not have been admissible against Cannon had he been tried separately from Mayhew, the court satisfactorily addressed the potential problem of unfair prejudice by instructing the jury to consider the evidence only against Mayhew. 14 ⁵⁶² II. "OTHER CRIMES" EVIDENCE In a related challenge, Cannon argues that the evidence of the Ellis and McKelvin murders amounted to proof of "other crimes, wrongs, or acts" under Md. Rule 5-404(b). Proceeding from that premise, Cannon faults the circuit court for not employing the requisite three-part test for assessing whether evidence of "other crimes, wrongs, or acts" has "special relevance" such that it might be admissible.

See, e.g. , Hurst v. State , 400 Md. 397 , 408, 929 A.2d 157 (2007) ; State v. Faulkner , 314 Md. 630 , 634-35, 552 A.2d 896 (1989). 15 Cannon misapprehends the purpose of Rule 5-404(b). Under Rule 5-404(b), "[e]vidence of other crimes, wrongs, or acts" is, in general, "not admissible to prove the character of a person in order to show action in conformity therewith." "The primary concern underlying the Rule is a 'fear that jurors will conclude from evidence of other bad acts that the defendant is a "bad person" and should therefore be convicted, or deserves punishment for other bad conduct and so may be convicted even though the evidence is lacking.' " Hurst v. State , 400 Md. at 407 , 929 A.2d 157 (quoting Harris v. State , 324 Md. 490 , 496, 597 A.2d 956 (1991) ). Nonetheless, evidence of a defendant's other wrongs "may be admitted if ⁶⁵⁶ the evidence is substantially relevant to some contested issue in the case and is not offered to prove guilt based on propensity to commit crimes." Id. For example, "[s]uch evidence ... may be admissible" as "proof of motive, ⁵⁶³ opportunity, intent, preparation, common scheme or plan, knowledge, identity, or absence of mistake or accident." Md. Rule 5-404(b).

Rule 5-404(b) is designed to protect the person who committed the "other crimes, wrongs, or acts" from an unfair inference that he or she is guilty not because of the evidence in the case, but because of a propensity for wrongful conduct. Hurst v. State , 400 Md. at 407 , 929 A.2d 157 ; see also Sessoms v. State , 357 Md. 274 , 281, 744 A.2d 9 (2000) (stating that Rule 5-404(b) is "designed to ensure that a defendant is tried for the crime for which he or she is on trial and to prevent a conviction based on reputation or propensity to commit crimes, rather than the facts of the present case"). Hence, in this case, Rule 5-404(b) would protect Mayhew from an inference that he must have orchestrated Nicoh's murder because he had a propensity for murder, having previously murdered Ellis and McKelvin. As to Cannon, on the other hand, the policies underlying Rule 5-404(b) are completely inapplicable.

Because Cannon was not involved in the Ellis and McKelvin murders, the evidence of those murders could not have been introduced to show that he acted in conformity with some criminal propensity to commit murders. See United States v. Morano , 697 F.2d 923 , 926 (11th Cir. 1983). On facts similar to these, numerous courts have held that a co-defendant, like Cannon, cannot invoke the analogous federal rule to challenge the admission of evidence of another defendant's other crimes, wrongs, or acts. See, e.g. , United States v. David , 940 F.2d 722 , 736 (1st Cir. 1991) ("[o]bjections based on Rule 404(b) may be raised only by the person whose 'other crimes, wrongs, or acts' are attempted to be revealed"); United States v. Gonzalez-Sanchez , 825 F.2d 572 , 583 (1st Cir. 1987) ("Rule 404(b) does not exclude evidence of prior crimes of persons other than the defendant"); see also United States v. Diaz , 878 F.2d 608 , 616 (2d Cir. 1989) ("[i]n this conspiracy case, evidence of crimes, wrongs or acts by coconspirators is admissible ... and such proof ordinarily does not raise any ⁵⁶⁴ Rule 404(b) question") (citations omitted); United States v. Sepulveda , 710 F.2d 188 , 189 (5th Cir. 1983) (in a drug-conspiracy case, Rule 404(b) did not prevent the introduction of evidence concerning an illegal transaction to which the defendant himself was not a party). 16 In short, Cannon had no basis to object to the admissibility of evidence of the Ellis and McKelvin murders under Rule 5-404(b).

Consequently, he has no basis to insist that the circuit court was required to ⁶⁵⁷ employ the three-part test for assessing "special relevance" of that evidence. Indeed, at oral argument Winston's attorney conceded that the proper basis for any such objection would have been that the evidence was unfairly prejudicial under Rule 5-403 ( see supra n. 11), which neither Cannon nor Winston invoked. Winston's concession is correct. As we described above, the general prohibition on "other crimes" evidence is designed to protect a defendant from being convicted because of an inference that, having engaged in criminal conduct on other occasions, he has a propensity for crime.

It is unnecessary to offer the same degree of solicitude to the concern that a defendant may be convicted because a co-defendant has engaged in other criminal conduct. Instead of adopting a general rule that would exclude the evidence of one defendant's other crimes in a trial involving multiple defendants, it makes more sense to admit that evidence, subject to the trial judge's ability to ⁵⁶⁵ determine, under Rule 5-403, that its probative force is substantially outweighed by the danger of unfair prejudice to a co-defendant.

III

JAILHOUSE CALLS Winston, Mayhew, and Cannon all contend that the circuit court erred in admitting recordings of the jailhouse calls without proper authentication. In support of their contention, however, they did not include any actual argument. But see Md. Rule 8-504(a)(6) ("[a] brief shall ... include ... [a]rgument in support of the party's position on each issue"). Instead, they "incorporate [d] ... as if fully set forth the arguments [Mayhew] previously made on this issue in the briefs filed in Mayhew v. State , Court of Special Appeals No. 475, September Term, 2014 [ 2015 WL 5885170 ] (filed Aug. 19, 2015)." In similar circumstances, we have declined to consider such arguments.

See, e.g. , Monumental Life Ins. Co. v. U.S. Fidelity & Guar. Co. , 94 Md.App. 505 , 544, 617 A.2d 1163 (1993) (declining to consider the merits of a party's arguments where the "brief does not contain the party's argument, but merely makes reference to an argument contained elsewhere") (italics in original); Rosenberg v. Rosenberg , 64 Md.App. 487 , 515 n.7, 497 A.2d 485 (1985) (declining to consider an argument that incorporated by reference a memorandum filed in the circuit court). But even if some argument were properly before us, we would reject it, because the State did more than enough to satisfy the minimal burden of authenticating the recordings.

Generally, authentication or identification is a condition precedent to the admissibility of certain forms of evidence. See Md. Rule 5-901(a). "[U]nder Federal Rule 901, from which Maryland Rule 5-901 is derived, the burden of proof for authentication is slight, and the court 'need not find that the evidence is necessarily what the proponent claims, but only that there is sufficient evidence that the jury ultimately might do so.' " ⁵⁶⁶ Dickens v. State , 175 Md.App. 231 , 239, 927 A.2d 32 (2007) (quoting United States v. Safavian , 435 F.Supp.2d 36 , 38 (D.D.C. 2006) ). The requirement of authentication or identification may be "satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Md. Rule 5-901(a).

"With respect to voice identifications, the Rule provides, '[b]y way of illustration only,' the following examples of authentication: 'Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, based upon the witness having heard the voice at any time under circumstances connecting it with the alleged speaker.' " ⁶⁵⁸ Donati v. State , 215 Md.App. 686 , 739, 84 A.3d 156 (2014) (quoting Md. Rule 5-901(b)(5) ). In this case, the State called two witnesses who were familiar with Cannon's and Winston's voices to identify their voices on the recordings. The State also called a witness who was familiar with Mayhew's voice to authenticate his voice-after which Mayhew protested that the State did not need to call anyone else on the subject. On these facts, there can be no serious dispute that the State adequately identified or authenticated the appellants' voices.

Although the appellants advanced no actual argument on the issue of authentication, we surmise, from the factual exposition in Mayhew's brief, that their argument would have concerned the State's failure to call a representative of the private company that stores the recordings of jailhouse calls to authenticate the recordings. That argument seems to suppose that the State had some obligation to obviate any conceivable possibility that someone had fabricated or tampered with the recordings, so as to create the false impression that Cannon, Mayhew, and Winston were planning Nicoh's murder. The short answer to that argument is that, to authenticate a piece of evidence, a party need not rule out every theoretical possibility that the evidence is something other than what he or she says it is; the party need only present a sufficient basis for a jury to find that the evidence is what he or she says it is. The State met that undemanding burden. ⁵⁶⁷ IV.

HEARSAY STATEMENTS Cannon contends that the court erred in admitting the recordings of the jailhouse calls under Md. Rule 5-803(a)(5), the exception to the hearsay rule for statements by a co-conspirator. He claims that the Stated failed to "establish when the alleged conspiracy was created." Winston adopts Cannon's argument. Cannon and Winston concede, however, that "trial counsel ... did not specifically raise this issue in that context." In other words, Cannon and Winston concede that they did not preserve this issue for appellate review. Md. Rule 8-131(a).

Nonetheless, Cannon argues that this is "a compelling case for plain error review because there was so little evidence implicating him in the crime[.]" "[A]ppellate invocation of the 'plain error doctrine' 1) always has been, 2) still is, and 3) will continue to be a rare, rare phenomenon." Morris v. State , 153 Md.App. 480 , 507, 837 A.2d 248 (2003) ; accord Givens v. State , 449 Md. 433 , 469-70, 144 A.3d 717 (2016) ; White v. State , 223 Md.App. 353 , 403 n.38, 116 A.3d 520 (2015). The Court of Appeals has articulated the following four conditions that must be met before an appellate court will reverse for plain error: 1. There must be a legal error that has not been intentionally relinquished or abandoned by the appellant. 2. The error must be clear or obvious, and not subject to reasonable dispute. 3.

The error must have affected the appellant's substantial rights, which in the ordinary case means that it affected the outcome of the proceedings. 4. If the previous three parts are satisfied, the appellate court has discretion to remedy the error, but it should exercise that discretion only if the error affects the fairness, integrity or reputation of judicial proceedings. Newton v. State , 455 Md. 341 , 364, 168 A.3d 1 (2017) ; see also Givens v. State , 449 Md. at 469 , 144 A.3d 717 ; State v. Rich , 415 Md. 567 , 578, 3 A.3d 1210 (2010). ^{659 568} Meeting all four conditions is, and should be, difficult. See Givens v. State , 449 Md. at 469 , 144 A.3d 717 .

Because each one of the four conditions is, in itself, a necessary condition for plain error review, the appellate court may not review the unpreserved error if any one of the four has not been met. For the same reason, the court's analysis need not proceed sequentially through the four conditions; instead, the court may begin with any one of the four and may end its analysis if it concludes that that condition has not been met. The record reveals no basis for this Court to exercise its discretion to review the record for plain error. Neither Winston nor Cannon have presented this Court with the recordings, a transcript of the recordings, or even any contentions about any of the particular statements that they believe constituted inadmissible hearsay.

As a result, we are unable to see whether the alleged error affected the outcome or whether it seriously undermined the fairness, integrity, or reputation of the proceedings. State v. Rich , 415 Md. at 578 , 3 A.3d 1210 . Hence, we need not address this unpreserved argument. In any event, we see no error, let alone any plain error.

From the evidence before us, we can discern that, with Winston's assistance, Mayhew set up a clandestine, back-channel means of communicating with Cannon and Winston. In those clandestine communications, Cannon, Mayhew, and Winston used slang and coded language to plan Nicoh's murder. In these circumstances, the clandestine communications themselves are evidence of a conspiracy that began at least as early as the first communication. It is, therefore, absurd to assert that the State failed to "establish when the alleged conspiracy was created." V. MOTION FOR MISTRIAL At trial, the State was required to prove that the voices on the jailhouse recordings were those of Cannon, Winston, and Mayhew.

To do so, the State called a number of witnesses who were familiar with their voices, played voice ⁵⁶⁹ exemplars for the witnesses, and had the witnesses confirm that the voices were those of Cannon, Mayhew, and Winston. One of the voice exemplars appears to have been a recording in which Cannon said to someone, "Yeah, you know his name, Stanley Winston mon." 17 The court had previously ruled that this recording would not have been admissible for the truth of the matter asserted under the co-conspirator exception to the hearsay rule ( Md. Rule 5-803(a)(5) ), because Cannon made the statement after the conspiracy had ended. See, e.g. , State v. Rivenbark , 311 Md. 147 , 533 A.2d 271 (1987). When the State played that brief excerpt, each of the defendants objected and moved for a mistrial.

The court denied the motion, because it found no willful violation of its earlier order. On appeal, Mayhew contends that the court abused its discretion in denying the motion for a mistrial, because, he says, the State clearly intended "to have the jury hear inadmissible hearsay." We see no abuse of discretion. "A mistrial is no ordinary remedy[.]" Cooley v. State , 385 Md. 165 , 173, 867 A.2d 1065 (2005). Rather, it is " 'an extraordinary act which should only be granted if necessary