State v. Hines , 450 Md. 352 ( 2016 )

Tevin Hines v. State of Maryland, No. 4, September Term, 2016. Opinion by Greene, J.
CRIMINAL LAW—JOINDER OR SEVERANCE OF COUNTS OR CODEFENDANTS
The trial judge abused his discretion in denying a trial severance where he knew before trial
that a statement would be offered into evidence, which was inadmissible against the defendant
requesting severance, and there was the potential that the defendant would be significantly
prejudiced by the admission of the statement. Prejudice occurs where a defendant is unfairly
prejudiced by evidence that would not be admissible against him in a separate trial.
Allen’s statement implicated Hines and was unduly prejudicial to Hines because of the joinder.
The statements Allen made about “Mike” were played for the jury along with the detectives’
statements of disbelief. This, coupled with the detectives’ interest in “Mike”, unequivocally
indicated to the jury that the detectives knew that “Mike” was fictional and knew that the man
Allen claimed to have spent his morning with was Hines insofar that the jury heard separate
testimony that Hines lives at the same address as where Allen claimed “Mike” lived. Further,
the statement implicated Hines because Allen claimed to go to the store with “Mike” and the
jury saw surveillance video of Hines with Allen at the convenience store. We cannot assume
the jury necessarily followed the limiting instruction when all signs pointed to Hines as being
“Mike”. Because the evidence implicated Hines in a manner so obvious that there is a risk that
the jury would have difficulty following the limiting instruction, the trial court erred in denying
a severance. The damage resulting from the reception of non-mutually admissible evidence
denied Hines a fair trial. Hines would not have encountered this unfair prejudice had his motion
for severance been granted and the denial of the severance was not harmless. We hold,
therefore, that Hines is entitled to a new trial.
Circuit Court for Baltimore City IN THE COURT OF APPEALS
Case No. 113044019-22
Argued: September 8, 2016 OF MARYLAND
No. 4
September Term, 2016
______________________________________
STATE OF MARYLAND
v.
TEVIN HINES
Barbera, C.J.
Greene,
Adkins,
McDonald,
Watts,
Hotten,
Getty,
JJ.
______________________________________
Opinion by Greene, J.
______________________________________
Filed: November 10, 2016
This case involves a joint criminal trial of two codefendants. The Circuit Court for
Baltimore City denied Respondent Tevin Hines’ motion for a severance in the trial of State
v. Dorrien Allen (“Allen”) and Tevin Hines (“Hines”). Hines argues that this was error
because he was prejudiced by the admission into evidence of a statement made by Allen,
which was inadmissible against Hines. At issue in this case is a question that this Court
has never squarely addressed: the application of the offense joinder analysis set forth in
McKnight v. State, 280 Md. 604, 612, 375 A.2d 551, 556 (1977) in the context of defendant
joinder. We agree with Petitioner, the State of Maryland, that generally, where most of the
evidence admissible at trial is mutually admissible, a joinder of defendants will be proper.
However, where joinder will result in prejudice to one or more defendants, a trial judge has
discretion under Maryland Rule 4-253 to grant a severance or order other relief as justice
requires. Here, where non-mutually admissible evidence was actually admitted during a
joint jury trial of codefendants and from the admission of that evidence, the objecting
defendant was prejudiced, the trial judge abused his discretion in denying a severance.
Because the statement that is inadmissible against Hines implicated him and therefore
caused him to suffer unfair prejudice from the joinder, the trial court committed reversible
error in denying the motion for severance and a new trial is warranted.
FACTUAL AND PROCEDURAL BACKGROUND
On January 15, 2013, Brandon Gadsby and Michelle Adrian drove from Frederick
County to Baltimore City to purchase heroin. Gadsby drove down Edmondson Avenue
and the surrounding residential streets of West Baltimore until two young men, one in an
orange jacket and another in a black beanie, waived Gadsby down. Gadsby later identified
the men as Dorrien Allen and Tevin Hines. Gadsby testified that he pulled his truck over
to the side of the street and Hines and Allen approached the vehicle and asked Gadsby,
“Boy or Girl” meaning heroin or cocaine. Gadsby indicated that he wished to purchase
heroin. According to Gadsby, Hines told Allen that he would meet him “over” there. Allen
then got into Gadsby’s vehicle and directed Gadsby to the 3900 block of Mulberry Street.
When Gadsby parked his vehicle in a lot adjacent to a cemetery, Allen exited the vehicle
and disappeared from view into a nearby alley. Allen then returned with Hines, but Hines
remained in the alley while Allen walked over to Gadsby’s vehicle. Gadsby testified to
hearing Hines tell Allen, “not yet, not yet”, apparently referring to the fact that a garbage
worker was nearby. After the garbage worker was out of sight, Allen pulled out a handgun
and said, “don’t fuckin’ move.” Gadsby testified that he reached for his keys to start his
truck and that Allen said, “are you trying to die?”, and then fired a gunshot that shattered
the driver’s side window. Gadsby said he then held out the $120 he intended to use to
purchase heroin and told Allen to take whatever he wanted. Allen grabbed the money,
exited the vehicle, and fired his gun multiple times, wounding Gadsby and killing Adrian.
Gadsby testified that Allen fled through a hole in the cemetery fence.
On the same day as the shooting, Officer Kevin McLean of the Baltimore City
Police Department was patrolling the area and saw Allen and Hines at the Normandy Food
Market at approximately 9:30 a.m. Allen was wearing a bright orange jacket and Hines
was dressed in black. Officer McLean was familiar with Allen and Hines based on his
experience patrolling that area. About twenty minutes later, Officer McLean drove to a
nearby convenience store and saw Allen and Hines. At 10:47 a.m., Officer McLean
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received a radio call reporting a shooting one block from Normandy Market and two blocks
from the convenience store. Officer McLean responded to the scene whereupon Gadsby
told Officer McLean he was shot by a black male wearing an orange jacket and blue jeans.
Based on this information and on the fact that Officer McLean had seen Allen in the area
earlier, he radioed that Dorrien Allen was a possible suspect.
Later on the same day, police saw Allen on the street and detained him for
questioning. Allen was questioned by Detectives Fuller and Carew. This interview was
recorded and offered as evidence by the State at trial. In the statement, Allen told police
that on the day of the shooting, he remained home until around midday when he went to
record a music video at his friend “Mike’s” house. According to Allen’s statement to the
police, he did not know “Mike’s” real name. Allen told police that “Mike” lives on the
300 block of Lyndhurst Avenue. The detectives then showed Allen a surveillance video
of Allen at the convenience store during the time at which he claimed to have been home.
The video, which was also shown to the jury at trial, shows Allen with a man who is clearly
Hines. Allen admitted to detectives that he was in the video but claimed to not know who
Hines was. Throughout the recorded interview, the detectives made statements of disbelief
as to Allen’s version of the events that took place on that day.1 Evidence was also admitted
at trial that established Hines’ address was 301 Lyndhurst Avenue.
Motion to Sever
Hines made a pretrial motion for severance, arguing that introduction of Allen’s
1
At several points in the statement admitted into evidence, detectives told Allen they knew
he was lying and urged him to come clean.
-3-
recorded statement would prejudice Hines. At the pretrial motions hearing, counsel for
Hines articulated to the trial judge the exact prejudice that would—and did—ensue from
the admission of Allen’s statement at a joint trial:
MR. SMITH [Defense Counsel]: Your Honor, I think that Mr. Hines’ case
should be severed partially because of the statement . . . the main part of the
statement is, all of the commentary by the detectives about what they know,
accusing Mr. Allen of you’re lying, we know you’re lying, we know about
this other person that you’re with, you’re lying about the name of the other
person that you’re with, Mr. Allen saying his name is Mike. All of the
commentary that we go through in this lengthy statement, and Mr. Allen’s
responses, however you want to characterize them, I don’t think are at all
admissible against Mr. Hines.
***
The other issue is I don’t anticipate any ability to cross-examine Mr.
Allen about any of his answers much less the ones regarding the accusations
made by the detectives, we know you’re lying Mr. Allen, we know that
you’re not telling us about the other person, we know who that other person
is, that implication there, and we know you’re lying about it, and it’s not
Mike and we know who it is. Well, the only inference that can be drawn
at that point is that it’s Mr. Hines and that Mr. Allen is lying about it--
***
THE COURT: Do they, at that point when they interview Mr. --
MR. NASH [Prosecutor]: They know it’s Tevin Hines, Your Honor.
THE COURT: --Allen, they know who Hines is?
MR. SMITH: Yes.
MR. NASH: Yes.
MR. SMITH: They’re trying to get him to say it’s Tevin Hines, isn’t it, and
he’s saying no, it’s Mike, I don’t know, I don’t wear an orange jacket.
THE COURT: I am amazed they didn’t say but we know that [sic] Tevin
Hines. I’m surprised, I was really interpreting it the other way.
MR. SMITH: No, they knew who they -- they had seen the video from
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whatever, the first store, you heard them talk about the 9:25 or whatever time
it was where they were asking Mr. Allen, we know you couldn’t have gotten
up at noon because we saw you at the store at 9:25 and we saw you with the
other guy and we know who that other guy is, and they know who it was, and
they were trying to get him to say it’s Tevin Hines, and they’re trying to get
him to say all that and that’s why in this situation, Your Honor, I
understand it’s not -- they didn’t use the word Tevin Hines, but the
testimony of Mr. Gadsby in this case that will come out, is that there
were only two people involved at the drug deal. This wasn’t something
you can sanitize and say well, maybe they won’t, maybe they will just
think that there was nobody else, okay, maybe you can sanitize this
statement, I don’t think you really can with it making any sense whatsoever
for the remaining parties, or the whole implication in this commentary by the
detectives which is the problem with not just asking questions, making all of
this commentary of we know you’re lying we know more than this, we know
these answers to these questions. All of that when I don’t get to ask Mr.
Allen any questions, I don’t get to really cross-examine, you know, fully this
statement and then have to say well, ladies and gentlemen, that has -- the
Court has to then say well, ladies and gentlemen, only use those accusations
of lying against Mr. Allen and only use these little bits of answers against
Mr. Allen, and don’t consider that as to Mr. Hines. I think Your Honor is
[sic] very dangerous and doesn’t give Mr. Hines the ability to have full
and fair cross examination, confrontation, and a full and fair trial.
And I think the way to cure that, obviously, is to sever his case
because then we wouldn’t play Mr. Allen’s statement at all, it wouldn’t
be relevant, and it certainly wouldn’t be admissible against Mr. Hines in
a separate trial[.]
***
THE COURT: Nothing in the statements the police made to Mr. Allen
suggests that there’s a second person involved in the crime, do they?
MR. SMITH: Yes, they do. They don’t come out and say we know that there
was a lookout, but the point is, Judge, the jury is going to get to hear all of
that in the trial and they’re going to say okay, now, let’s play Mr. Allen’s
statement and the inference is going to be obviously all of these accusations
are going to be well, that was Mr. Allen doing whatever, lying, not being
honest, whatever word you want to use, and trying to hide the fact that the
police who they believe it is Mr. Hines, is the co-perpetrator of all of these
events that happened in the back alley of 3900. And it’s not simple -- the
bigger, to me, one of the biggest problem [sic] is it’s not a question and
answer scenario and there’s all of these accusations against Mr. Allen
-5-
but they are essentially imputed in a way to [sic] it’s got to be Hines, we
know who it is, it’s got to be the co-defendant. Because they’re not going
to hear that there were three people involved other places, or four
people, maybe it could have been somebody else that Mr. Allen is talking
about. It can only be Mr. Hines that is being talked about because that’s
who they were trying to get him to talk about at the time. And I think it’s
just impossible to parse out anything from this statement that is mutually
admissible, and I think the safer and more fair way to proceed is to allow the
State to use whatever they choose to use and Mr. Scott and the State and the
Court decide the appropriate redacted statement as to Mr. Allen in his trial.
But to have and allow and essentially force Mr. Hines to have to sit
here, not be able to cross-examine Mr. Allen about it, is unfair.
(emphasis added). In response to defense counsel’s motion for severance, the prosecutor
made the following argument at the motions hearing:
MR. NASH: Your Honor, so when we are talking about a severance, it’s
under Rule, I am sorry, 4-253(a), appealing to case law, Stevenson 43 MD
App 120, joinder dictates -- is dictated when most of the evidence at trial is
admissible. In this case, almost all the evidence, all the witnesses are going
to be the same. So what we’re talking about, it sounds like counsel brought
up two issues, hearsay and 6th and the 14th amendment, confrontation issue.
Hearsay is not a reason to sever. Now, what we commonly refer to as Bruton
can be, but we have to have a Bruton issues [sic], in other words, we have to
have a statement that expressly identifies the defendant as the -- or the co-
defendant as engaging in criminal conduct and frankly, Your Honor, we
don’t have that here.
So let’s start with the argument that while there’s other evidence in
the case and if they take some things said in the statement, then they can link
it to other evidence in the case and figure out that at times. Well, if we look
at Richardson v. Marsh, that’s 21 US 200, in a statement where the co-
defendant doesn’t name the defendant, even though there might be evidence
in the confession, that’s linked to other evidence in the trial, that’s what
Richardson v. Marsh says, that that is not reason to sever due to
confrontation.
The bigger problem with counsel’s argument is, is that the defendant,
Mr. Allen, never says anywhere in any part of the statement, anything that
implicates Mr. Hines and that’s exactly what Bruton is supposed to protect
one from. Even if we were to go out on a limb and say that there’s something
that the detective said, which clearly isn’t -- wouldn’t be accurate either,
-6-
because they never mentioned Mr. Hines [sic] name, but even if it was
something the detective said, well, the detective can take the stand and they
can cross-examine the detective. But Mr. Allen never says anything even
remotely linking Mr. Hines to the crime. As a matter of fact, he’s trying to
save Mr. Hines and repeats over and over again, I don’t know who
you’re talking about, what you’re talking about, I don’t know that guy.
The closest we get is that I got some change from him or he gave me some
change, one or the other.
So, Your Honor, there is no reason to sever, there’s no confrontation
issue, but even if there were, the case law would -- there is some of the case
law that says that if Your Honor finds something (inaudible) in the
confession of Mr. Allen that Your Honor has decided, even though
(inaudible) could -- should be kept out, we can simply redact that and we can
move on with the case, with the co-defendants tried together.
(emphasis added).
There is no dispute that the statement would have been inadmissible hearsay in a
trial had Hines been tried separately from Allen.2 However, the parties were in
disagreement as to whether the statement would prejudice Hines. The trial court ruled that
part of Allen’s statement was admissible and denied the motion, stating “All right. If those
matters were taken out, I don’t think that the statement can even inferentially be pointing
a finger at Mr. Hicks [sic] and I would deny the motion for severance.” The trial judge
admitted the statement, subject to a limiting instruction to the jury that the statement was
only evidence against Allen and was not to be considered against Hines.3
2
As to Allen, the statement is admissible hearsay under the statement of a party opponent
exception. Md. Rule 5-803. However, as to Hines, no hearsay exception applies.
3
Specifically, the trial judge instructed:
Now, some of the evidence in this case is applicably [sic] only to one of the
defendants and does not have any effect on the other person. Specifically I
address your attention to the statement made by Mr. Allen. It was only
admitted against him and not against Mr. Hines. You must consider such
-7-
Statement Admitted in the State’s Case in Chief
The following portions of Allen’s statement were admitted in the State’s case in
chief and played at trial for the jury:
DETECTIVE CAREW: Okay. All right. So you’re saying that you did not
leave your house until 12:00 noon?
MR. ALLEN: Yes.
DETECTIVE CAREW: Okay. Where did you go?
MR. ALLEN: I went to the studio.
DETECTIVE CAREW: You went right to the studio?
MR. ALLEN: Yeah, I had in my mind I was going there, so I was ready to
hit.
DETECTIVE CAREW: You went right from 639 Yale Avenue [Dorrien
Allen’s residence] right to --
MR. ALLEN: Lyndhurst.
DETECTIVE CAREW: To Lyndhurst. What address on Lyndhurst?
MR. ALLEN: I don’t know the address on Lyndhurst, I know it’s like
the 300 block.
DETECTIVE CAREW: 300 block of Lyndhurst. And who lives there?
MR. ALLEN: I know Mike live there and like I know he probably got
the rest of the family household, I don’t really pay attention.
***
DETECTIVE CAREW: All right. So what time did you get to that house,
the studio at the 300 block of Lyndhurst?
evidence only as it relates to Mr. Allen, as I told you during the trial, each
defendant is entitled to has [sic] his case decided separately on evidence that
applies to that person.
-8-
MR. ALLEN: I don’t know the time I got to the house, probably, I don’t
know, it’s probably, you know, cuz by the time I was -- I was probably
getting to his house, I don’t know what time it probably was, I don’t know,
it was probably going on 1:00 something, I don’t know.
DETECTIVE CAREW: And who did you see at the house?
MR. ALLEN: What you mean who did I see at the house?
DETECTIVE CAREW: When you went to the studio, who did you talk to
or--
MR. ALLEN: I was talking to Mike.
DETECTIVE CAREW: Mike.
MR. ALLEN: Me and Mike was the only one[s] in there at the time,
that’s why me and him had left out and went to the store and that’s how
the officer had grabbed me, I was with Mike.
DETECTIVE CAREW: Oh, when the officer grabbed you, you were with
Mike?
MR. ALLEN: Yes.
DETECTIVE CAREW: What is Mike’s real name?
MR. ALLEN: I don’t know his real name.
DETECTIVE CAREW: All right. So that’s all you did for the entire day.
You left at noon, you went to Lyndhurst and then you came outside and the
officers grabbed you?
MR. ALLEN: Yeah, we was going to the store and --
DETECTIVE CAREW: What store were you going to?
MR. ALLEN: We was going to walk around to Normandy.
***
DETECTIVE CAREW: Well, we have video that shows and the jacket and
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your face and you will get to see that at some point, but trust me that that’s
the case, and we knew where to go back to get the video because the officer
saw you up there earlier and went in the store and he told us to go look, and
we went and looked and there you were, but you weren’t alone, you also
had a friend with you. Who is the friend with you?
MR. ALLEN: The only person I was out there with was Mike, sir.
DETECTIVE CAREW: That’s a lie. All right. In order for you to
help yourself in any way, you got to find a way to tell the truth and you
are not doing that.
MR. ALLEN: I am, sir, you can’t tell me I’m not telling the truth--
DETECTIVE CAREW: I can tell you the truth when I have video, when I
have the officer and the officer I know is right because when we went back,
we looked at the video and we downloaded the video and we have it on CD,
of you and your friend, and we know who your other friend is and we
know where he lives. Can you just tell us where the friend lives that
was with you?
MR. ALLEN: I don’t know where he lives.
DETECTIVE CAREW: Try 301 Lyndhurst.
***
(Whereupon, the taped statement was stopped in the courtroom [and
Detective Fuller gave the following in-court testimony:])
[BY PROSECUTOR]:
Q. And at that part of the video, what are you guys looking at?
A. [BY DETECTIVE FULLER] I’m indicating Mr. Hines on the
video.
Q. And before, just like 30 seconds earlier, we’re talking about where
Mr. Allen is being shown the video and he identifies somebody as
himself, who is he identifying?
A. Mr. Allen -- you can see his face clearly on the video but Mr. Allen
in the video wearing the orange jacket.
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Q. That’s who he identifies as himself?
A. Correct.
(emphasis added). The jury heard this, as well as in-court testimony by Detective Fuller
that Hines lived at 301 Lyndhurst. At trial, neither Hines nor Allen testified. The jury
convicted Hines of first degree murder, use of a handgun in commission of a crime of
violence, attempted murder, robbery with a deadly weapon, conspiracy to commit robbery
with a deadly weapon, and first-degree assault.
Hines noted an appeal to the Court of Special Appeals, arguing, inter alia, that the
trial court erred in denying Hines’ motion to sever the codefendants’ trials. The Court of
Special Appeals, in an unreported opinion, reversed the trial court’s ruling, and held that
“Hines was prejudiced by having to defend himself against . . . evidence that would not
have been admissible had he been tried separately.” The State of Maryland filed a Petition
for a writ of certiorari in this Court. We granted certiorari, State v. Hines, 446 Md. 291,
132 A.3d 193 (2016), to answer two questions.4 We have restated the first question for
clarity:
(1) Did the trial judge err in denying a severance in accordance with Rule 4-
253(c)?
(2) Was any error in admitting Allen’s statement harmless?
4
The State presented the following questions:
(1) In a joint trial, was the trial court within its discretion in admitting a
co-defendant’s statement which did not mention Hines, but did mention the
street where Hines lived?
(2) Was any error in admitting Allen’s statement harmless?
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For the reasons that follow, we answer yes to question one and no to question two.
Accordingly, we affirm the judgment of the Court of Special Appeals and hold that it was
error for the trial judge to refuse to sever the trials and the error was not harmless.
STANDARD OF REVIEW
Maryland Rule 4-253(c) specifically affords the trial court discretion in deciding a
severance motion. Md. Rule 4-253 (“If it appears that any party will be prejudiced by the
joinder . . . the court may, on its own initiative or on motion of any party, order separate
trials . . . or grant any other relief as justice requires.”) (emphasis added). Ordinarily, such
decisions are reviewed only for abuse of discretion. See Erman v. State, 49 Md. App. 605,
612, 434 A.2d 1030, 1036 (1981). In McKnight, 280 Md. at 612, 375 A.2d at 556, we
limited the discretion afforded to a trial judge under Rule 4-253(c) and held that severance
is mandated where a single defendant is jointly tried by a jury for separate offenses and
evidence as to the offenses is non-mutually admissible. We explain, as discussed below,
that the McKnight analysis applies in the limited context of joinder/severance of offenses.
The proper standard of review when reviewing a severance determination in cases of
codefendant joinder remains whether the trial court abused its discretion.
DISCUSSION
Legal Contentions
The State argues that the Court of Special Appeals adopted an approach to joinder
wherein the only test is “whether the evidence as to all defendants is mutually admissible”
and this approach “would have the effect of eliminating nearly all joint trials of co-
defendants[.]” According to the State, the proper test is whether the introduction of non-
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mutually admissible evidence is prejudicial. The State posits, however, that the statement
did not prejudice Hines because the type of prejudice to be avoided in the context of non-
mutually admissible evidence in a joint trial of multiple defendants is “impairment to a
particular defense,” or “undue risk of conviction on grounds unrelated to the evidence.”
According to the State, even where prejudice exists, the court has discretion to curtail the
prejudice by means other than severance, such as redactions and limiting instructions. The
State argues that the trial court did not abuse its discretion because the statement was
redacted to remove any references to Hines. In addition, the State contends that there was
no prejudice because the judge gave a limiting instruction, and the content of the statement
did not interfere with Hines’ defense of mistaken identity. The State maintains that the
statement was introduced to show Allen’s consciousness of guilt because he gave a
demonstrably false alibi.5
Hines views the case differently. He maintains that in cases involving joint
5
The State also contends that the admission of the statement did not implicate Bruton.
Bruton deals specifically with the Sixth Amendment Confrontation Clause rights
implicated where two or more defendants are jointly tried and one of the defendants does
not testify at trial but gives a statement to police that is later admitted into evidence at trial.
Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). The State’s
position is that Bruton is not implicated because nothing in the statement directly
inculpated Hines and to the extent there was any “linkage” evidence tying Hines to the
statement, it was more attenuated than the linkage evidence in Richardson v. Marsh, 481
U.S. 200, 202, 107 S. Ct. 1702, 1704, 95 L. Ed. 2d 176, 182 (1987). To this point, Hines
contends that this case is unlike Richardson, where the court removed any reference to the
existence of another assailant, and is instead more analogous to Gray v. Maryland, 523
U.S. 185, 118 S. Ct. 1151, 140 L. Ed. 2d 294 (1998), where an “obvious deletion” was not
enough to protect the defendant’s Sixth Amendment rights. We did not grant certiorari to
decide whether Bruton is implicated. We need not reach that issue as the matter is
dispositive under Rule 4-253.
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defendants, the applicable rule is set forth in McKnight, 280 Md. at 612, 375 A.2d at 556,
that where evidence is non-mutually admissible, severance is required as a matter of law.
According to Hines, the trial judge erred as a matter of law in admitting Allen’s redacted
statement, which is inadmissible hearsay as to Hines. He asserts that he was prejudiced by
the introduction of the statement and that the limiting instruction was insufficient to
insulate him from prejudice. Hines contends that he suffered prejudice not because he was
directly mentioned in the statement, but because the detectives exposed Allen’s obvious
lies and conveyed to the jury that the police knew: (1) that “Mike”, who lived on the 300
block of Lyndhurst, was a fictitious person; (2) that Hines was Allen’s companion shown
in the video surveillance footage; and (3) that Hines lived at 301 Lyndhurst. Moreover,
Detective Fuller testified during breaks in the playing of the recording that police knew
Hines was the one in the video. Thus, Hines contends that “the unmistakable message”
from the questioning and comments by the detective and from Allen’s untruthful answers
was that Allen was with Hines at the time of the shooting and Allen lied about it, possibly
to insulate Hines.
Maryland Rule 4-253
Joinder and severance in criminal cases is governed by Maryland Rule 4-253. This
Rule contemplates two distinct joinder/severance situations: defendant joinder and offense
joinder. Under Rule 4-253(a), two or more defendants can be tried together in a joint trial
“if they are alleged to have participated in the same act or transaction or in the same series
of acts or transactions constituting an offense or offenses.” Md. Rule 4-253. Under
subsection (b), upon motion of a party, a trial court may join separate but related offenses
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in a trial of a single defendant where the defendant “has been charged in two or more
charging documents.” Id. This Rule is based on a policy favoring judicial economy and
its purpose is “to save the time and expense of separate trials under the circumstances
named in the Rule, if the trial court, in the exercise of its sound discretion deems a joint
trial meet[6] and proper.” Lewis v. State, 235 Md. 588, 590, 202 A.2d 370, 371 (1964).
Finally, subsection (c), with which we are here concerned, governs “prejudicial joinder.”
This subsection provides:
If it appears 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.
Id. This final subsection affords a trial judge discretion in making a joinder/severance
determination and embodies a balancing approach between “the likely prejudice caused by
the joinder . . . [and] the considerations of economy and efficiency in judicial
administration.” Frazier v. State, 318 Md. 597, 608, 569 A.2d 684, 689 (1990).
We recognize that the “overbearing concern of the law of this State with respect to
joint or separate trials of a defendant charged with criminal offenses [is] to safeguard
against potential prejudice.” Frazier, 318 Md. at 607, 569 A.2d at 689. Under the Rule, a
trial judge has discretion in deciding how to safeguard against prejudice caused by joinder;
the judge may grant a severance or “other relief as justice requires.” Md. Rule 4-253.
6
According to Webster’s II New College Dictionary, one definition of the word meet is
“fitting: proper ” WEBSTER’S II NEW COLLEGE
DICTIONARY (3d Ed. 2005).
- 15 -
Maryland Courts have repeatedly held that “‘[p]rejudice’ within the meaning of Rule 4-
253 is a ‘term of art,’ and refers only to prejudice resulting to the defendant from the
reception of evidence that would have been inadmissible against that defendant had there
been no joinder.” Galloway v. State, 371 Md. 379, 394 n. 11, 809 A.2d 653, 663 n. 11
(2002) (quoting Ogonowski v. State, 87 Md. App. 173, 186–87, 589 A.2d 513, 520 (1991))
(emphasis added).
Thus in exercising discretion to avoid prejudice to a defendant, the trial judge must
engage in the following analysis. First, the judge must determine whether evidence that is
non-mutually admissible as to multiple offenses or defendants will be introduced. Second,
the trial judge must determine whether the admission of such evidence will cause unfair
prejudice to the defendant who is requesting a severance. Finally, the judge must use his
or her discretion to determine how to respond to any unfair prejudice caused by the
admission of non-mutually admissible evidence. 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. The judge must exercise his or her discretion to avoid
unfair prejudice. See Day v. State, 196 Md. 384, 394, 76 A.2d 729, 733 (1950) “(While it
is generally a matter of discretion with the court as to whether a separate trial shall be
granted, such discretion is not to be exercised arbitrarily but so as to prevent injustice.”)
(quoting People v. Patris, 196 N.E. 806, 808 (Ill. 1935)). Where, as discussed below, a
limiting instruction, redaction, or other relief is inadequate to cure the unfair prejudice, and
severance remains the only option to avoid unfair prejudice, a denial of severance
- 16 -
constitutes an abuse of discretion.
McKnight
In McKnight, this Court limited a trial judge’s discretion to join offenses in the
context of a jury trial under Rule 745, the predecessor to Rule 4-253. 280 Md. at 612, 375
A.2d at 556. The McKnight Court 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 mutually admissible[7] at separate trials.” Id. The
Court based its holding on the rationale underlying the “other crimes” evidentiary rule of
exclusion. McKnight, 280 Md. at 611, 375 A.2d at 555. The Court, in considering the
criticisms of offense joinder, was particularly concerned with the possibility that “the jury
may use the evidence of one of the crimes charged, or a connected group of them, to infer
a criminal disposition on the part of the defendant from which he may also be found guilty
of other crimes charged.” McKnight, 280 Md. at 609, 375 A.2d at 554–55. We explained
that the “other crimes” evidentiary rule is designed “to prevent prejudice to defendants”
and that if the rationale behind that rule is valid, “prejudice will result from joinder
7
The term mutual admissibility appears throughout the case law. Where evidence is
“mutually” admissible, it is admissible in a joint trial, as well as in separate trials. Where
evidence is non-mutually admissible, it is admissible at a joint trial of offenses or
defendants as to a specific offense or a specific codefendant, but would be inadmissible at
a separate trial of the other offense or other defendant. See, e.g., McKnight, 280 Md. at
610, 375 A.2d at 555 (“Where 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. It is equally clear, however, 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[.]”) (emphasis
added).
- 17 -
wherever the [“other crimes”] rule itself is violated, even though the evidence is separable.”
McKnight, 280 Md. at 611, 375 A.2d at 555.
Consistent with the decisions pre-dating it, McKnight was decided on an abuse of
discretion standard. 280 Md. at 614, 375 A.2d at 557. H owever, McKnight has been
subsequently interpreted to stand for the proposition that non-mutual admissibility of
evidence as to unrelated offenses is per se prejudicial in the context of a jury trial, requiring
severance as a matter of law. In Graves v. State, this Court explained:
The McKnight holding took away the discretion of the trial judge presiding
at a jury trial to join similar offenses where the evidence as to them was not
mutually admissible. As we have indicated, in such circumstances, there was
prejudice as a matter of law which compelled separate trials. The rationale
underlying the McKnight holding was our concern that a jury would be
unable to set aside the likely prejudice engendered by the joinder.
298 Md. 542, 545–46, 471 A.2d 701, 702–03 (1984) (emphasis added). See also Wieland
v. State, 101 Md. App. 1, 10, 643 A.2d 446, 450 (1994) (“[McKnight is] the case that first
dramatically narrowed the range of discretion truly available to the trial judge by holding
that, in a jury case at least, whenever evidence on separate charges would be mutually not
admissible, severance, if timely requested, is absolutely mandated as a matter of law.”)
(emphasis added). In Wieland, Judge Charles E. Moylan, Jr., writing for the Court of
Special Appeals, referred to Graves as the “definitive exegesis of the meaning of
McKnight” as totally limiting the judge’s discretion. Id. Judge Moylan explained further
that “[t]he nagging incongruity is that we continue to label the reason for appellate reversal
on this issue not ‘legal error,’ which it has become, but an ‘abuse of discretion,’ which it
cannot be for there is no longer any discretion to be abused.” Wieland, 101 Md. App. at
- 18 -
11, 643 A.2d at 451. As we discuss in this opinion, our holding in McKnight must be
understood in terms of the context of that case, a joinder of offenses in a jury trial of a
single defendant.
Confusion in the Case Law: McKnight in the Context of Defendant Joinder
Although McKnight set forth a clear standard in cases of offense joinder within the
context of a jury trial, confusion as to this standard’s applicability to defendant joinder has
persisted in the case law. Cases decided since McKnight, dealing with offense joinder have
stated, in dicta, that the standard elucidated in McKnight applies to both offense joinder
and defendant joinder. See, e.g., Solomon v. State, 101 Md. App. 331, 340, 646 A.2d 1064,
1068 (1994) (“The first ground-breaking step taken by the McKnight decision was to hold
that, in a jury trial at least, severance was absolutely mandated, as a matter of law, when
the evidence with respect to the separate charges (or, presumably, with respect to separate
defendants) would not be mutually admissible. In a jury trial, on this issue no discretion
remains.”). See also Conyers v. State, 345 Md. 525, 552, 693 A.2d 781, 794 (1997)
(“McKnight's holding, technically, did not apply to multiple defendant joinder, but this
Court has stated that the McKnight analysis is also the proper way to determine the
propriety of multiple defendant joinder.”). Additionally, this Court has cited McKnight in
the context of codefendant joinder cases. See Osburn v. State, 301 Md. 250, 254, 482 A.2d
905, 907 (1984).
In Osburn, we wrote that McKnight set the standard for “the joinder/severance of
multiple defendants or multiple charges against one defendant; the evidence offered must
be mutually admissible as to each defendant or as to each charge in order for joinder to be
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proper.” Id. See also Ogonowski, 87 Md. App. at 186–87, 589 A.2d at 519–20 (stating
that “[t]he analysis applicable to joinder and severance of defendants” is “essentially
identical” to that for offense joinder and upholding denial of severance where the claims
of error did “not involve evidence that would have been inadmissible in a severed trial”).
Other cases have classified McKnight as applicable only in the limited context of offense
joinder. Graves, 298 Md. at 545, 471 A.2d at 702 (“The McKnight holding took away the
discretion of the trial judge presiding at a jury trial to join similar offenses where the
evidence as to them was not mutually admissible.”) (emphasis added).
The post-McKnight case law has thus created some confusion as to whether a
finding of non-mutual admissibility of evidence in a joint defendant trial automatically
entitles a defendant to a severance without any further inquiry into prejudice. Upon this
distinction, the State and Hines are in dispute. What is clear from McKnight is that the
question of mutual admissibility is at least common to determinations of prejudice in both
contexts of offense joinder and defendant joinder. The question of mutual admissibility is
simply a method of assessing what difference there would be between a joint and a separate
trial in any given case. See McKnight, 280 Md. at 610, 375 A.2d at 555 (“Where 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.”); Solomon, 101 Md.
App. at 349, 646 A.2d at 1073 (“[P]rejudice at a joint trial does not consist of damage from
evidence that would have been admissible in any event even had the trials of the defendants
or charges been severed.”). The McKnight analysis ends upon a finding, vel non, of mutual
admissibility. However, this Court has never had the opportunity to squarely determine
- 20 -
whether the analysis in the context of defendant joinder stops where the McKnight analysis
ends or if it goes beyond McKnight. See Osburn, 301 Md. at 254–55, 482 A.2d at 907(ending the analysis upon a finding of mutual admissibility).
In both Osburn and Ogonowski, the evidence involved was mutually admissible,
meaning that it would have been admissible against the defendant requesting severance
had he been given a separate trial. Osburn, 301 Md. at 254, 482 A.2d at 907; Ogonowski,
87 Md. App. at 187, 589 A.2d at 520. The mutually admissibility in these cases was
dispositive of the outcome and the appellate courts did not need to, nor did they have the
opportunity to, determine whether prejudice under the Rule existed. In short, these cases
did not have the facts that we have before us today. Thus, the courts did not have an
opportunity to apply the full analysis inherent in Rule 4-253(c). Further, both Conyers and
Solomon involved questions of severance in the offense joinder context; language
suggesting a McKnight analysis in the context of codefendant joinder was dicta. Solomon,
101 Md. App. at 340, 646 A.2d at 1068; Conyers, 345 Md. at 552, 693 A.2d at 794.
A close examination of our case law reveals that non-mutual admissibility alone
does not entitle a defendant to a separate trial from his codefendant. Instead, “prejudice”
under Rule 4-253(c) by definition means damage from evidence that would not have been
admissible against a defendant in a trial separate from his codefendant. See, e.g., Moore v.
State, 84 Md. App. 165, 169, 578 A.2d 304, 306 (1990) (“A defendant is deemed to have
been prejudiced by a joint trial when the joining of a co-defendant or co-defendants (1)
permits the State to introduce, against a particular defendant, otherwise inadmissible
evidence, and (2) that otherwise inadmissible evidence tends to contradict the defendant’s
- 21 -
theory of the case.”). Technically, the McKnight analysis for offense joinder is no different
than the analysis for codefendant joinder. In both contexts, when confronted with a
severance question, a trial court must first determine whether there is non-mutually
admissible evidence, and then must ask whether the admission of non-mutually admissible
evidence results in any unfair prejudice to the defendant. What McKnight did in the limited
context of offense joinder in a jury trial was to create a presumption of prejudice upon the
reception of non-mutually admissible evidence. In the particular context of offense joinder,
non-mutually admissible evidence is inherently prejudicial because evidence pertains to
only one defendant and is accompanied by the risk of improper propensity reasoning on
the part of the jury. 8 See McKnight, 280 Md. at 609, 375 A.2d at 554–55 (“[T]he jury
may use the evidence of one of the crimes charged, or a connected group of them, to infer
a criminal disposition on the part of the defendant from which he may also be found guilty
8
The distinction between situations in which non-mutually admissible evidence pertains
to a single defendant versus pertaining to multiple defendants is important for two reasons.
First, it makes proper the finding of prejudice as a matter of law in the context of offense
joinder for the reason explained above—the evidence only pertains to the one defendant,
thus it is clearly prejudicial as to him or her because it embodies the risk of improper
propensity reasoning. Second, this distinction explains how the McKnight line of cases
limited a judge’s discretion under the Rule regarding how the judge cures unfair prejudice
caused by a joinder. Ordinarily, a judge has discretion under Rule 4-253 to respond to
prejudicial joinder by granting a severance or “other relief as justice requires.” The “other
relief” could be, for example, redacting a statement or limiting hearsay testimony to remove
any reference to the defendant against whom it is inadmissible. However, in the context
of offense joinder, all of the evidence is admissible against the one defendant, so redaction
is not a viable option. Further, this Court held in McKnight that a limiting instruction would
be insufficient means of curing prejudice caused by the admission of non-mutually
admissible evidence in the context of a jury trial of joined offenses. Thus, there is no relief
other than a severance that could conceivably cure the prejudice caused by a joinder of
offenses where the evidence is non-mutually admissible.
- 22 -
of other crimes charged.”). Thus, a trial judge, in the context of a jury trial, need not make
an additional inquiry into the existence of prejudice because prejudice is inherent in the
non-mutual admissibility of evidence.9
In cases of codefendant joinder, however, it is foreseeable that in some instances,
evidence that is non-mutually admissible may not unfairly prejudice the defendant against
whom it is inadmissible because the evidence does not implicate or even pertain to that
defendant. Due to this latter scenario, it is inappropriate to say that, as we have said in the
context of offense joinder, non-mutuality equates with prejudice in the context of
codefendant joinder. Instead, the defendant must show that non-mutually admissible
evidence will be introduced and that the admission of such evidence will result in unfair
prejudice. Ball v. State is illustrative. 57 Md. App. 338, 354, 470 A.2d 361, 370 (1984),
aff'd in part, rev'd in part sub nom. Wright v. State, 307 Md. 552, 515 A.2d 1157 (1986).
In Ball, codefendants Ball, Wright, and Gilmore were jointly tried and convicted of
a killing that occurred during the commission of a robbery at an A&P store. Ball, 57 Md.
App. at 347–49, 470 A.2d at 366–67. On appeal, Wright challenged the trial court’s denial
of his motion for severance. Ball, 57 Md. App. at 347, 470 A.2d at 366. At trial, the State
called Angelo Frazier as a witness. Ball, 57 Md. App. at 350, 470 A.2d at 367. Frazier
was incarcerated at the same time along with Wright’s codefendants, Ball and Gilmore. Id.Frazier testified that while in lockup, he overheard a conversation between Ball and
9
“The law of trial joinder in bench trials is more flexible. A judge has discretion to permit
joinder of offenses or defendants even if there is no mutual admissibility of offenses
because it may be presumed that a judge will not transfer evidence of guilty as to one
offense to another offense.” Conyers, 345 Md. at 552–53, 693 A.2d at 794.
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Gilmore. Id. Frazier specifically testified that he heard Gilmore say to Ball, “This is
probably the A&P lineup. I can’t worry because they can’t identify any of us, we had
masks on” and that Ball replied, “I know, I ain’t worried about it.” Id. This evidence,
although hearsay, was admissible against Gilmore under the statement of a party opponent
hearsay exception, and admissible against Ball pursuant to the adoptive admission hearsay
exception. Ball, 57 Md. App. at 354, 470 A.2d at 369.10 See also Md. Rule 5-803. As to
Wright, the statement was hearsay and would have been inadmissible had Wright been
tried separately. Id.Nevertheless, the Court of Special Appeals affirmed the denial of severance, noting
that “the conversation did not implicate the appellant Wright and did him no damage in
any direct sense.” Id. (emphasis added). This is perhaps the clearest indication that non-
mutuality alone does not lead to a finding of prejudice as a matter of law in the context of
defendant joinder. Had the standard set forth in McKnight applied, Wright would have
been entitled to severance because the evidence was inadmissible as to Wright and, under
McKnight, severance is mandated as a matter of law where evidence is non-mutually
admissible. Graves, 298 Md. at 545–46, 471 A.2d at 702.11
10
As such, Ball, who also challenged a denial of his own severance motion, was not entitled
to severance. Id
11
Those cases that, in dicta, cited McKnight as the standard applicable to both defendant
joinder and offense joinder were not necessarily incorrect; rather, those courts simply did
not have occasion to determine whether non-mutually admissible evidence as to
codefendants was per se prejudicial because each of those cases dealt with evidence that
was mutually admissible. See Osburn, 301 Md. at 254, 482 A.2d at 907; Ogonowski, 87
Md. App. at 187, 589 A.2d at 520.
- 24 -
Payne v. State involved a joint trial of codefendants Payne and Bond who were
charged with felony murder and kidnapping. 440 Md. 680, 682, 104 A.3d 142, 143 (2014).
At their joint trial, wiretapped phone conversations, in which Bond was a participant but
Payne was not, were admitted into evidence. Payne, 440 Md. at 682–83, 104 A.3d at 143.
The telephone conversations were inadmissible against Payne under the rule against
hearsay. Payne, 440 Md. at 710, 104 A.3d at 159. We also determined that the
conversations would not implicate Bruton, because under Crawford v. Washington, the
statements were non-testimonial.12 Payne, 440 Md. at 717–18, 104 A.3d at 164. However,
we remanded the case to the trial court for a determination of “whether joinder or a
cautionary instruction will sufficiently avoid prejudice to Payne under the tenets of
Maryland Rule 4-253(c).” Payne, 440 Md. at 718, 104 A.3d at 164 (“[P]rejudice within
the meaning of Rule 4-253 is a ‘term of art’ and refers only to prejudice resulting to the
defendant from the reception of evidence that would have been inadmissible against the
defendant had there been no joinder.”) (quoting Galloway, 371 Md. at 394 n. 11, 809 A.2d
at 663 n. 11). Thus, Payne is likewise illustrative of the distinction between the analysis
for severance of offenses and of defendants. Had the application of the rule been the same
in the joinder of defendants context, inadmissibility alone would equate with prejudice
under the Rule, and there would have been no reason for this Court to remand the case to
the trial court to determine whether there was prejudice under Rule 4-253.
12
“[I]t is ‘necessary to view Bruton through the lens of Crawford[.]’” Payne, 440 Md. at
717, 104 A.3d at 164 (quoting United States v. Figueroa–Cartagena, 612 F.3d 69, 85 (1st
Cir. 2010)).
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Accordingly, we clarify that the application of the analysis for joinder and severance
of defendants differs from the analysis applicable to joinder and severance of offenses in
the context of a jury trial.13 McKnight limited a trial judge’s discretion in the narrow
context of a jury trial in which a single criminal defendant is charged with similar but
unrelated offenses and requires severance where evidence that is non-mutually admissible
as to one or more offenses is introduced. Although mutual admissibility is a necessary
determination in both contexts, non-mutual admissibility alone does not equate to prejudice
as a matter of law in the context of joinder and severance of codefendants. Rather, in this
context, a trial judge retains the discretion afforded to him or her by Rule 4-253 to sever
the case or grant such other relief as justice requires. In other words, the test for severance
in the context of offense joinder and in the context of codefendant joinder is the same: the
joinder cannot be unduly prejudicial. What differs between these two situations is the
application of the test—how a trial court determines the existence of prejudice.
McKnight created a presumption in the limited context of a jury trial of a single
defendant for joined offenses: because admission of non-mutually admissible evidence
13
We find support for this distinction in several Court of Special Appeals decisions. As
the intermediate appellate court noted in Eiland v. State:
[The] possibility of significant damage to a defendant by evidence
inadmissible as to him but admissible against a codefendant is the only
criterion for measuring joinder/severance ever recognized by Maryland law.
Unless damaging evidence is not mutually admissible, a trial severance is,
indeed, contraindicated. As we stated in Ball v. State, 57 Md.[ ]App. 338,
353, 470 A.2d 361 (1984) (emphasis supplied), “A severance is called for
only when a defendant will be significantly prejudiced by evidence
admissible against a codefendant but not admissible against him.”
92 Md. App. 56, 73–74, 607 A.2d 42, 51 (1992) (emphasis added).
- 26 -
against one defendant is inherently prejudicial against that defendant, trial courts need not
make further inquiry into prejudice. In the context of defendant joinder, the trial court must
first determine whether non-mutually admissible evidence will be introduced and then must
determine whether the admission of such evidence will unfairly prejudice the defendant
seeking a severance. If the trial judge finds that the admission of non-mutually admissible
evidence will result in unfair prejudice, the judge must exercise his or her discretion to
remove the prejudice by either granting a severance or other relief (such as redacting
evidence so as to implicate only the defendant against whom the evidence is admissible).
As discussed below, the trial judge in this case abused his discretion by failing to
adequately remove the unfair prejudice to Hines caused by the admission of Allen’s
statement.
Prejudice in the Context of Joinder of Codefendants
An examination of the appropriate body of case law dealing squarely with the issue
of prejudice in the context of codefendant joinder reveals two cases where a Maryland
appellate court has held that a trial judge abused his discretion in denying a trial severance.
This examination begins with the case of Day, 196 Md. 384, 76 A.2d 729. Although Day
has been classified as a “pre-Bruton case with a Bruton problem[,]” this case is nonetheless
relevant to our Rule 4-253 analysis. Eiland, 92 Md. App. at 74 n.3, 607 A.2d at 51 n.3.
See also Sye v. State, 55 Md. App. 356, 364, 468 A.2d 641, 645 (1983). Day is particularly
useful to our analysis because it was decided not on Confrontation Clause grounds, but
upon the basis of prejudice resulting from a jury’s inability to ignore non-mutually
admissible evidence, even after this Court gave limiting instructions. Day, 196 Md. at 390,
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76 A.2d at 731. See also Sye, 55 Md. App. at 366, 468 A.2d at 646 (“Day . . . involved
prejudice arising from the impact of inadmissible evidence, thereby denying a defendant a
fair trial.”).
Day involved a joint trial of two codefendants, both of whom gave statements to
police wherein each defendant blamed the other defendant for a shooting. Day, 196 Md.
at 387, 76 A.2d at 730. At the time that the defendants filed motions for severance, the
trial judge was aware that the State was going to introduce the statements at trial. Id. The
trial court denied severance and admitted the statements into evidence. Id. The trial court
instructed the jury that each defendant’s statement was only evidence against that
defendant and was not to be considered against his codefendant. Day, 196 Md. at 387–88,
76 A.2d at 730. The defendants appealed, arguing that the limiting instruction offered them
insufficient protection and that the trial court erred in denying the severance. Day, 196
Md. at 388, 76 A.2d at 730.
In reviewing the denial of severance, this Court initially noted that severance
determinations are within the sound discretion of the trial court. Day, 196 Md. at 388, 76
A.2d at 730. We explained that “[t]here are a number of matters which are in the discretion
of the trial court, but it is not true that in all of these matters there is no review.” Day, 196
Md. at 388–89, 76 A.2d at 731. We further recognized that “[w]hile it is generally a matter
of discretion with the court as to whether a separate trial shall be granted, such discretion
is not to be exercised arbitrarily but so as to prevent injustice.” Day, 196 Md. at 394, 76
A.2d at 733 (quoting People v. Patris, 196 N.E. 806, 808 (Ill. 1935)). Prior to Day, this
Court had held that giving a limiting instruction is “all that the court can do in a joint trial,”
- 28 -
but had “not passed upon the question of whether the court could not or should not do more
by way of granting a severance, if it is known to the court at the time the severance is asked
that that situation is going to arise.” Day, 196 Md. at 390, 76 A.2d at 731–32. In holding
that the trial court abused its discretion in denying the severance, this Court wrote:
Under ordinary circumstances, where two parties are accused of the same
crime, it is in the interest of both justice and economy that they should be
tried together, but under the circumstances of this case, we have come to the
conclusion that it was an abuse of discretion by the trial court, after it knew
what evidence was to be produced, not to grant the severance prayed, and we
will therefore reverse the case as to each defendant on this ground so that a
new and separate trial may be had as to each.
Day, 196 Md. at 395, 76 A.2d at 734. This Court based its holding on the conclusion that
a limiting instruction in the case before it was insufficient to insulate the codefendants from
prejudice, noting that
[a] joint trial under the circumstances in this case would necessarily raise in
the minds of the jury the question which of the defendants was telling the
truth, or whether both were lying. Under such circumstances it would be a
practical impossibility for the jurors to dismiss from their minds the
statements of Lewis against Day when considering the Day case, and to
dismiss the statements of Day against Lewis when considering Lewis’s case.
No juror, no matter how intelligent and how desirous of doing his duty, and
obeying the instructions of the court, could rid his mind of the impression
necessarily made upon him, by these statements of each of the defendants
against the other.
Day, 196 Md. at 390, 76 A.2d at 731. In sum, the trial judge in Day abused his discretion
in electing to give a limiting instruction in lieu of granting a severance where he was aware
before the trial that non-mutually admissible evidence would be introduced at trial and that
the admission of such evidence would prejudice the defendants.
Another case where the trial judge abused his discretion in denying severance is
- 29 -
Erman, 49 Md. App. at 613, 434 A.2d at 1036. This case involved a motion for mistrial
on severance grounds, which the defendant made during the course of his trial. Erman, 49
Md. App. at 612, 434 A.2d at 1036. The Court of Special Appeals ultimately treated the
motion as one for a mistrial, concluding that there was a “manifest necessity” for separating
the trials. Erman, 49 Md. App. at 616, 434 A.2d at 1038. The intermediate appellate court,
however, concluded that the standard to be employed by the trial judge in ruling on such a
motion is that “as Rule 745 [now rule 4-253] contemplates, there must be prejudice to a
defendant when joined for trial with another defendant and that this prejudice must be such
as to prevent him from receiving a fair trial before he is entitled to a severance or a
mistrial.” Erman, 49 Md. App. at 614, 434 A.2d at 1037. During the joint jury trial of
Erman and his codefendant Brent, several items of evidence admissible only against Brent
were introduced. Erman, 49 Md. App. at 612, 434 A.2d at 1036. The evidence included
testimony of alleged criminality or misconduct on the part Brent . . . for
example, Brent’s threats on people’s lives, his plans to kill one Stearck,
shooting at a neighbor’s dog, and shooting at the house of an acquaintance
of his with whom he had had some trouble and for which he was charged
with assault with intent to murder.
Id. The judge, on several occasions, gave limiting instructions to the jury that it was to not
consider the evidence against Erman; Erman in turn, made several motions for mistrial and
severance. Id. On appeal, the Court of Special Appeals reversed the trial court’s denial of
a mistrial and severance, and held that “the trial judge abused his discretion” in denying a
severance. Erman, 49 Md. App. at 613, 434 A.2d at 1036. The intermediate appellate
court held that the damage resulting from the reception of non-mutually admissible
evidence denied Erman a fair trial, explaining:
- 30 -
In the instant case, the type of evidence as to Brent only which caused the
trial judge to instruct the jury repeatedly seems to us to have been
increasingly prejudicial to Erman, particularly as the number of incidents
grew. In short, we view the cumulative effect of such evidence as denying
Erman a fair trial. The argument for a joint trial—judicial economy—has
merit. Nevertheless, this must always be balanced against the prejudice to a
defendant[.]
Erman, 49 Md. App. at 616, 434 A.2d at 1038. In so holding, our colleagues on the
intermediate appellate court noted that where “the instances of the need to so instruct the
jury are many, the effectiveness of such instructions may very well diminish to the point
of becoming meaningless.” Erman, 49 Md. App. at 615, 434 A.2d at 1037. Thus, in both
Day and Erman, the manifestation of prejudice to the defendant was the risk that the jury
may disregard a limiting instruction and consider, against the defendant, evidence that
would be inadmissible had he been tried separately. Under these circumstances, the trial
court’s exercise of discretion in denying severance and instead issuing a limiting
instruction did not prevent an injustice. In Day, prejudice occurred when non-mutually
admissible evidence was introduced that would lead to the natural conclusion that one or
both of the defendants was lying. In Erman, prejudice occurred when non-mutually
admissible evidence was introduced in a degree so great as to render the several limiting
instructions repetitive, mundane, and meaningless, so as to fall upon deaf ears. In each
case, the trial judge abused his discretion in denying a severance in light of such risk.
Application of Rule to Case
Here, Hines was significantly prejudiced by the actual admission of evidence that,
although admissible against Allen, was inadmissible against Hines. As in Day, the trial
judge in the case sub judice was aware that the non-mutually admissible statement was
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going to be offered by the State at trial. 196 Md. at 387, 76 A.2d at 730. Moreover, as in
Day, the trial judge was advised of the exact prejudice that was likely to ensue (and did in
fact ensue) if the statement were introduced at a joint trial. Id. The trial judge in the case
at bar had discretion under the rule as to how to handle the likely prejudice; the judge
could have granted a severance or he could have adequately redacted Allen’s statement so
that it would not implicate Hines. The trial judge elected to do neither.14 Instead, he
admitted the statement into evidence, with all of the references to “Mike” and all of the
detectives’ commentary, and gave a limiting instruction to the jury. Here, just as in both
Day and Erman, we are unwilling to assume the jury was able to follow the limiting
instructions given by the trial judge. In the present case, it would have been practically
impossible for the jurors to dismiss from their minds the statements of Allen when
evaluating the evidence against Hines.
Even as redacted to omit any express reference to “Tevin Hines,” Allen’s statement
implicated Hines in a damaging way, which resulted in prejudice to Hines. The statements
Allen made about “Mike” were played for the jury along with the detectives’ statements
of disbelief. This, coupled with the detectives’ interest in “Mike” and questions about the
man in the surveillance video15 (who was clearly Hines) unequivocally indicated to the
14
We note that the State could have avoided the fairness issue altogether by electing not
to enter Allen’s statement in its case in chief.
15
“Questions alone can impeach . . . they can insinuate; they can suggest; they can
accuse[.]” Craig v. State, 76 Md. App. 250, 292, 544 A.2d 784, 805 (1988) vacated on
other grounds, 497 U.S. 836, 110 S. Ct. 3157, 111 L. Ed. 2d 666 (1990).
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jury that the detectives knew “Mike” to be fictional, knew that the man in the video and
the man Allen claimed to have spent his morning with was in fact Hines,16 and were simply
trying to get Allen to admit it. The statement further implicated Hines insofar that the jury
heard separate testimony that Hines lives at 301 Lyndhurst. In the statement, Allen said
“Mike” lives on the 300 block of Lyndhurst and Detective Carew indicated that he knew
“Mike” lived at 301 Lyndhurst. Finally, we note that this was all in the context of Allen’s
statements being lies that were obvious to the detectives and invariably, the jury.17 The
State claims it introduced the statement to show Allen’s consciousness of guilt. 18 In our
view, Allen’s statement that he was home during the morning juxtaposed with video
surveillance showing him at the store in the morning would have served this purpose.
However, admission of all of the statements about “Mike” and “Mike’s” address largely
served to point the finger at Hines, the codefendant sitting at the defense table, the man
shown with Allen in the video, and the only person who could plausibly be “Mike”.
16
At one point, Allen tells detectives that he went to the store with “Mike”. Allen is then
shown footage of himself and Hines at the store (the same footage the jury saw at trial).
When Allen denies knowing who Hines is, Detective Carew states, “You just walked to
the store together and he gave you money?”
17
The State relied upon Allen’s statement in making its case during closing arguments.
The prosecutor argued, “Mr. Allen made a statement that clearly shows that he was guilty.
His words portrayed the fact that he was guilty, he showed his guilty mind.” In our view,
the obvious inference from this argument is that Hines is also guilty because Hines and
“Mike” are one in the same.
18
Hines notes that the jury could infer that Allen lied in order to insulate Hines from police
suspicion. Thus the statement not only created the risk that the jury would know that
“Mike” is Hines and use the statement against him, it also created the risk of inference that
Hines was guilty and Allen was trying to protect him.
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We cannot assume that the jury necessarily followed the limiting instruction when
all signs pointed to Hines as being “Mike”. Because the evidence implicated Hines in a
manner so obvious that there is a risk that the jury would not have followed the limiting
instruction and not have considered Allen’s statement against Hines, the trial court erred
in denying a trial severance.19 This prejudice, Hines would not have encountered had his
motion for severance been granted. We hold, therefore, that the trial judge abused his
discretion in failing to sever the trial, and hold that Hines is entitled to a new trial.
Harmless Error
The State argues that under a harmless error analysis, reversal is not required. To
establish a harmless error, the burden is upon the State to show beyond a reasonable doubt
that the error “had no influence on the verdict.” Perez v. State, 420 Md. 57, 68 n.5, 21
A.3d 1048, 1055 n.5 (2011). The State, ignoring the many ways in which Allen’s statement
implicated Hines, contends that the denial of severance was harmless error because Allen’s
statement was exculpatory and not prejudicial. The State also argues that the limiting
instruction served to guard against prejudice engendered by the statement. For reasons
discussed above, the statement was inculpatory and the limiting instruction insufficient to
guard Hines from unfair prejudice. In Dorsey v. State, we explained that
19
The judge would have been within his sound discretion to deny severance had he
redacted the statement so as to remove any implication of Hines, such as reference to
“Mike”, the “other person” Allen was with, and “301 Lyndhurst.” However, as admitted,
the statement was unduly prejudicial to Hines and would not have been admitted against
Hines had he been given a separate trial. Furthermore Hines’ trial counsel clearly advised
the trial judge of the specific prejudice caused by Allen’s statements and a reasonable trial
judge would have exercised his discretion to avoid injustice by either further redacting the
statement or granting a severance.
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when an appellant, in a criminal case, establishes error, unless a reviewing
court, upon its own independent review of the record, is able to declare a
belief, beyond a reasonable doubt, that the error in no way influenced the
verdict, such error cannot be deemed ‘harmless' and a reversal is mandated.
276 Md. 638, 659, 350 A.2d 665, 678 (1976). Here, because the admission of Allen’s
statement unfairly prejudiced Hines and created the risk that the jury would ignore the
limiting instruction and consider this inadmissible evidence against Hines, we cannot say
that the error in no way influenced the verdict. See id. We are thus unable to declare the
error in denying severance harmless beyond a reasonable doubt.
Conclusion
For the forgoing reasons, we hold that the trial court committed reversible error in
denying a severance under Maryland Rule 4-253. Accordingly, we affirm the judgment of
the Court of Special Appeals.
JUDGMENT OF THE COURT OF
SPECIAL APPEALS IS AFFIRMED.
PETITIONER TO PAY THE COSTS.
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