Elmer v. State , 353 Md. 1 ( 1999 )

RAKER, Judge.

Petitioner was convicted by a jury in the Circuit Court for Cecil County of the offenses of unlawful shooting with intent to disable, in violation of Maryland Code (1957, 1992 Repl. Vol.), Article 27, § 386; malicious injury to eye, in violation of Art. 27, § 385; common law assault; reckless endangerment, in violation of Art. 27, § 120; and common law conspiracy to shoot with intent to disable.¹ The Court of Special Appeals affirmed. Elmer v. State, 119 Md.App. 205, 704 A.2d 511 (1998). This Court granted certiorari to answer the question of whether the Court of Special Appeals erred in affirming the judgments despite the error of the trial court in permitting the State to cross-examine the co-defendant Robert Brown with statements made by Brown’s counsel during plea negotiations which directly incriminated Petitioner.

I.

On February 1, 1996, Petitioner David Allen Elmer was a passenger in a car driven by Robert Brown. The car entered the neighborhood of Winding Brook and swerved toward four pedestrians standing close to a bridge near the side of the road. The four people then walked to a nearby basketball court and told others of the swerving incident. The Brown car drove to the basketball court, which is when several of the people started throwing large rocks at the car, causing damage to the windshield, windows, and body of the car. The car again swerved toward some of the participants and then quickly departed, returning a third time, to find several of the pedestrians brandishing more rocks.

Rocks began bouncing off the car again, and Petitioner put a shotgun outside the passenger window. A shot was fired, and the shot struck Robert Earl, a bystander uninvolved in the rock throwing incident. Three pellets struck him in his head, two more in his nose, and one in his left' eye. The victim suffered irreparable damage to his eye and now wears a replacement prosthesis.

In a joint trial, Brown and Elmer proceeded to trial before a jury. A significant issue developed at trial as to which person in the car actually fired the shotgun—Brown or Elmer. Elmer did not testify. Several witnesses testified that they saw the shotgun through the passenger’s side and that Elmer fired the shot that struck Mr. Earl. Brown testified that he reached over and pulled the trigger as one of the bystanders was aiming a large chunk of granite at the car window and that Elmer was trying to avoid being hit with it. Brown’s testimony that he pulled the trigger, and not Elmer, led the prosecutor to inquire of Brown on cross-examination:

THE STATE: Mr. Brown, did you ever make the statement that when you came down around the curve ... your attention was drawn to the people that were running from your left, and that at that point in time Allen Elmer put that gun out the window, pulled the trigger, the gun boomed, and the first thing you said to him is what the F did you do? Did you ever make that statement?

[COUNSEL FOR BROWN]: Objection. May we approach the bench?

THE STATE: Did you ever make that statement, Mr. Brown?

[COUNSEL FOR BROWN]: Your Honor—

THE COURT: It’s cross-examination.

THE STATE: Did you ever make that statement? [COUNSEL FOR BROWN]: Your Honor—

THE COURT: Just a minute. Come on up.

The following discussion took place at the bench.

THE COURT: What is your objection?

[COUNSEL FOR BROWN]: I am trying to make sure that [the prosecutor] is not trying to get into attorney/client privilege. The attorney who he was making the statement to—clarify that, please.

THE COURT: Well, if he made it to you, how would he know about it? If he made it to you, how would [the prosecutor] know about it?

[COUNSEL FOR ELMER]: I object. Objection.

[COUNSEL FOR BROWN]: My objection is I want him to clarify who he made the statement to.

THE STATE: All I have to ask him is if he ever made that statement.

THE COURT: You’re overruled.

The bench conference concluded and the prosecutor continued before the jury:

THE STATE: Mr. Brown, I think you heard the question, but I will ask you again. Did you ever make the statement, Mr. Brown, that—when you came down around this curve that your attention was drawn to the people who were coming from your left, and you’re looking out there, out the driver’s side toward those people on the left as you heard— don’t look at [counsel for Brown].

[COUNSEL FOR BROWN]: I am making the objections. He is looking at me.

THE COURT: I am overruling you. You are looking at the attorney.

[COUNSEL FOR BROWN]: Your Honor, we need to approach the bench again.

THE COURT: No, no, you are not approaching the bench. He is asking questions. I’ve already ruled on this. Go ahead.

[COUNSEL FOR BROWN]: Your Honor, it’s on a separate matter. I need to approach the bench for the record, please.

THE COURT: Come on up.

The following discussion took place at the bench.

[COUNSEL FOR BROWN]: Your Honor, [the prosecutor] asked in settlement negotiations what would my client testify to, and during settlement negotiations I told him what my client would testify to. I never told him my client said that. That was part of the settlement negotiations for—

[COUNSEL FOR ELMER]: In all fairness, good conscience, fairness, he can’t use something like that now when negotiations—

THE COURT: Is that what you are using now?

THE STATE: Yes, I am. Let me tell you how this went though. This is—[counsel for Brown] came to me, and said his client was willing to plead guilty to reckless endangerment, and his client wanted to testify in my prosecution of this defendant; and his client would testify just exactly the same that I am asking right now.

[COUNSEL FOR BROWN]: No. When I said—he asked, what do you expect your client to say. I said, I would expect my client to testify—

THE STATE: And he continually said that’s what the witness had said.

[COUNSEL FOR BROWN]: I never intentionally asked my client what he did or not what he did until ten minutes before yesterday.

THE COURT: What you—

[COUNSEL FOR BROWN]: He asked what I expect him to testify to. I never—

THE COURT: You are overruled. You have your objection.

[COUNSEL FOR BROWN]: Thank you.

Before the jury, the prosecutor again inquired:

THE STATE: Mr. Brown, you made the statement, didn’t you, that when you came around this curve on Willow Drive that your attention was drawn to the people over on your left hand side, and that you were driving, and you are watching them when you heard the boom of a shotgun; and you looked over at Mr. Elmer and said, what the F did you do that for; and Mr. Elmer said to you, I shot the car. Didn’t you make that statement?

BROWN: No, I did not make that statement. That was how it was stated in newspapers and stuff; and at that time no one had given me a chance to tell my side of the story, what happened down there that day. I was never given a chance to explain what happened or anything like that. And in my charging documents that was what had been said. So that is what I had went along with to try to get those charges filed against the attackers who admitted to attacking, which you have let go; and that’s so they can get away with attacking people. That’s—I mean, I know it is a terrible shame that somebody got hurt in this incident. That could have easily been me and Allen on that stretcher flying to Shock Trauma. Does that give them the right to attack us?

THE STATE: Mr. Brown, didn’t you say that you would testify to just that in the prosecution of Mr. Elmer?

BROWN: No, I did not. That was never said, no. I never said I was going to testify. I am saying that now here. I am right now sitting here finally—finally after a year and six months in jail, free of all this terror and nervousness and pain and everything that me and my family has had to suffer. I’m here now finally getting to tell the truth, and what really happened in this case.

THE STATE: Did you ever communicate to me that you were going to testify, or you’d be willing to testify in the prosecution of Mr. Elmer?

[COUNSEL FOR ELMER]: Objection.

[COUNSEL FOR BROWN]: Objection.

THE COURT: Sustained. It’s already been asked and answered.

Counsel again approached the bench and the following colloquy occurred:

[COUNSEL FOR ELMER]: I want to formally object for the record that Your Honor permitted the state’s attorney to ask questions about plea negotiations, or questions after it was plea negotiations, preliminary.

THE COURT: This was already objected to.

[COUNSEL FOR ELMER]: But you permitted him to continue. That’s totally wrong for a state’s attorney— THE COURT: You’ve already got your objection. What are you bringing it up again for?

[COUNSEL FOR ELMER]: Because we—for the record.

THE COURT: You got it for the record the first time. You have it on the record, gentlemen.

Elmer filed a timely appeal to the Court of Special Appeals. The intermediate court affirmed, noting that Elmer based his entire appeal on a violation of Maryland Rule 5-410. Elmer, 119 Md.App. at 219, 704 A.2d at 517.² The court held that Rule 5-410 “bars the introduction of evidence and no evidence was introduced in the instant case regarding any plea bargaining statement.” Id. at 214, 704 A.2d at 515. The court further held that Rule 5-410 applies only to one who is a party to the plea negotiations. Id. at 216, 704 A.2d at 516. Because Brown or his counsel, and not Elmer, participated in plea discussions, Elmer could not complain that the rule was violated and that any statements made by Brown were inadmissible as to him. Id. at 216, 704 A.2d at 516. We granted Elmer’s petition for writ of certiorari.

II.

Petitioner argues that the statements of Brown or Brown’s lawyer were inadmissible against him because the statements violated the rules against hearsay and the confrontation clauses of the Sixth Amendment and Article 21 of the Maryland Declaration of Rights. Petitioner maintains that as to Brown, Maryland Rule 5-410 excludes statements of both Brown and his lawyer made during plea negotiations. Petitioner contends that, despite Brown’s denial of the statement at issue, Petitioner was prejudiced by the repeated asking of the question. Simply because Brown denied making the statements attributed to him by the prosecutor does not end the inquiry and the prosecutor, through his questioning of Brown, informed the jury that the statements had, in fact, been made.

The State counters that Elmer cannot complain that Brown’s statements were offered to impeach Brown because Rule 5-410 applies only to the defendant who made the plea or was a participant in the plea discussions. In any case, no such evidence was admitted against Elmer because Brown denied making the statement that Brown pulled the trigger. The State’s final position is in the nature of a harmless error argument—that since Brown denied the statement, Elmer was not unfairly prejudiced.

III.

A;

Maryland Rule 5-410 provides, in pertinent part, as follows:

(a) Generally. Except as otherwise provided in this Rule, evidence of the following is not admissible against the defendant who made the plea or was a participant in the plea discussions:

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(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or nolo contendere or which result in a plea of guilty or nolo contendere which was not accepted or was later withdrawn or vacated.

The plain language of the rule provides that statements made in the course of plea negotiations with an attorney for the State are inadmissible against the defendant who participated in those negotiations. Because Elmer did not participate in Brown’s plea negotiations, the Rule does not proscribe the State’s use of the statement as to Elmer.

Maryland Rule 5-410 was derived from Federal Rule of Evidence 410 (also known as Rule 11(e)(6) of the Rules of Criminal Procedure) and is virtually identical with its federal counterpart. Like the Maryland rule, the federal rule provides that statements made in the course of plea negotiations with a government attorney are inadmissible against a defendant who participated in those negotiations. Participation in the negotiations is a requisite. United States v. Testa, 33 F.3d 747, 751 (7th Cir.1994).

The purpose behind both rules is to encourage plea bargaining and the open and candid discussions between prosecuting authorities and defendants. As the Court of Special Appeals pointed out, this reasoning finds support in the Advisory Committee Note to Federal Rule of Evidence 410. Elmer, 119 Md.App. at 216, 704 A.2d at 516; see Jackson v. State, 340 Md. 705, 716, 668 A.2d 8, 13-14 (1995) (noting that when federal rule of evidence contains same language as Maryland rule of evidence, court may look to former when interpreting latter). The Advisory Committee Note indicates:

Limiting the exclusionary rale to use against the accused is consistent with the purpose of the rale, since the possibility of use for or against other persons will not impair the effectiveness of withdrawing pleas or the freedom of discussion which the rule is designed to foster.

The purpose of the rale would not be furthered by extending its application to include defendants who were not a party to the plea negotiations.

B.

Our inquiry does not end, however, with the determination that the issue is not governed by Rule 5-410. The inapplicability of Rule 5-410 to Petitioner does not transform evidence inadmissible under Rule 5-410 against Brown and otherwise inadmissible against Petitioner into admissible evidence. The State does not argue that the questioning of Brown as to his statements to his lawyer or his lawyer’s statements to the prosecutor were admissible as to Brown.³ The evidence was likewise inadmissible against Elmer, albeit on different grounds. As to Elmer, the statement which the prosecutor attempted to elicit from Brown constituted inadmissible hearsay.

Keeping in mind that the evidence which the prosecutor was attempting to elicit was inadmissible evidence as to both Elmer and Brown, we now turn to the conduct of the prosecutor during questioning. We must determine if the prosecutor’s questions were improper, and if so, “we look at the remarks in the context of the entire record and determine whether the defendants were deprived of fair trials.” United States v. Robinson, 8 F.3d 398, 415 (7th Cir.1993). Indeed, the Court of Special Appeals discussed the prosecutor’s misconduct in repeatedly pursuing the line of inquiry.

The prosecutor here exhibited temerity in the face of these principles by asking the question of Brown. He could not prove that Brown made the statement alleged, and the entire area of inquiry was infused with the clienVattomey privilege, the inadmissibility of plea bargaining discussions, and perhaps even Bruton [v. U.S., 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968)7 problems. We assume in the prosecutor’s defense that Brown’s confession on the stand came as a surprise, since Brown’s counsel had apparently indicated to the prosecutor prior to trial that Brown would be willing to testify in appellant’s trial. Once Brown’s counsel explained at sidebar that his client had never made the statement, however, the prosecutor had no business maintaining this line of inquiry and should have withdrawn the question. By repeating the question in verbatim detail, even down to editing out the “F” word for the benefit of propriety, the prosecutor only exacerbated the potential for the question to mislead the jury into treating the question itself as actual evidence. In posing the question a third time, he asked whether Brown, a co-defendant, had said he would testify against appellant, which placed before the jury the additional inference that Brown had engaged in plea negotiations____ When the prosecutor asked his fourth and final question (which went unanswered), he even went so far as to ask, ‘Did you ever communicate to me that you were going to testify____’ This gave the jury the clear impression that the prosecutor’s entire line of questions regarding Brown’s prior inconsistent statement was based on personal knowledge and derived from Brown himself. Not only did the prosecutor have no ability to prove this, it was actually known by him to be false. Attempting to give the jury a knowingly false impression presses the limits of judicial tolerance.

Elmer, 119 Md.App. at 218-19, 704 A.2d at 517 (footnote omitted).

It is misconduct for a lawyer to inject inadmissible matters before a jury by asking a question that suggests its own otherwise inadmissible answer, “hoping that the jury will draw the intended meaning from the question itself____” C. Wolfram, Modern Legal Ethics, § 12.1.2, at 623 (1986). As to prosecutors, a prosecutor may not ask a question “which implies a factual predicate which the examiner knows he cannot support by evidence____” United States v. Elizondo, 920 F.2d 1308, 1313 (7th Cir.1990) (quoting United States v. Harris, 542 F.2d 1283, 1307 (7th Cir.1976)); United States v. Meeker, 558 F.2d 387, 389 (7th Cir.1977); see also, National Prosecution Standards § 77.2, at 211 (2d. ed. 1991) (hereinafter Prosecution Standards) (“Counsel should not ask a question which implies the existence of a factual predicate which he knows to be untrue or has no reasonable objective basis for believing is true.”); American Bar Association Standards for Criminal Justice, Prosecution Function, Standard 3-5.7(d), at 103 (3d. ed. 1993) (hereinafter ABA Standards) (“A prosecutor should not ask a question which implies the existence of a factual predicate for which a good faith belief is lacking.”).⁴ “A lawyer who has no reason to believe that a matter is subject to proof may not, by pursuing the matter in examining a witness ... attempt to create the impression that the matter is factual.” Wolfram, supra, § 12.1.2, at 628. The problem is that whether the question is answered or not, the jury has been alerted to the fact which the question assumes. Id.

In United States v. Meeker, 558 F.2d 387 (7th Cir.1977), the prosecutor asked witnesses four improper questions. The first question alluded to matters that the prosecutor had no reason to believe would be supported by admissible evidence, the second question left the jury with a false impression of defendant’s prior criminal activity, the third question contained “an implication that the defendant was guilty of engaging in the conduct for which he was on trial,” and the final question asked for inadmissible opinion evidence which was irrelevant to the case. Id. at 388-89. The court reversed, stating:

[T]he questions invited the jury to convict [the defendant] on facts outside the record, some of which were patently untrue, and others of which were not admissible at trial. ‘The prejudice to a defendant of inviting conviction on facts—if they be such—dehors the record is counter to the basic concept of fairness.’

... [C]oming from the mouth of the representative of the United States, of whom the average jury expects fairness and impartiality ..., such prejudicial questions ‘carry much weight against the accused when they should properly carry none.’

Id. at 390 (citations omitted).

This is exactly what happened in this case. As we have noted, the prosecutor’s questions suggested the existence of facts which he could not prove, and indeed, after the bench conference, he knew he could not prove. Following the bench conference where defense counsel articulated the source of the information, the prosecutor lacked a good faith belief in the factual predicate implied in the question.

In addition to conveying the impression to the jury that he had superior information of facts not in evidence before the jury, the prosecutor’s questions were improper because they implied his personal opinion concerning Brown’s truthfulness. A prosecutor may not express or imply his or her personal opinion concerning a witness’s truthfulness. Robinson, 8 F.3d at 415; see also United States v. Hartmann, 958 F.2d 774, 786 (7th Cir.1992). Because the prosecutor’s inquiry was highly prejudicial and inadmissible as to both Brown and Petitioner, the trial court should have precluded the inquiry.

C.

We now turn to the State’s contention that notwithstanding the improper inquiry, Petitioner was not prejudiced and thus, the error was harmless. The State argues that Petitioner was not prejudiced because Brown denied making the statement and also provided a detailed and plausible explanation for the origin of the statement.

It would be folly to suggest that questions alone cannot impeach. This notion was well-stated by then Chief Judge Wilner, now a member of this Court, writing for the intermediate appellate court in Craig v. State, 76 Md.App. 250, 292, 544 A.2d 784, 805, (1988), rev’d on other grounds, 316 Md. 551, 560 A.2d 1120 (1989), jdgmt. vacated on other grounds, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990):

Questions alone can impeach. Apart from their mere wording, through voice inflections and other mannerisms of the examiner—things that cannot be discerned from the printed record—they can insinuate; they can suggest; they can accuse; they can create an aura in the courtroom that the trial judge can sense but about which we could only speculate. The most persistent denials, even from articulate adult witnesses, may not suffice to overcome the suspicion they can engender....

Other courts also have recognized that “[a]n improper incriminating question or series of questions may constitute reversible error in certain cases.” United States v. Arambula-Ruiz, 987 F.2d 599, 606 (9th Cir.1993) (citing Douglas v. Alabama, 380 U.S. 415, 419, 85 S.Ct. 1074, 1077, 13 L.Ed.2d 934 (1965)). In Douglas, the defendant and an alleged accomplice were tried separately in state court for assault with intent to murder. Id. at 416, 85 S.Ct. at 1075. The state called the alleged accomplice as a state’s witness, who repeatedly refused to testify on self-incrimination grounds. Id. at 416, 85 S.Ct. at 1075. The prosecutor read his alleged confession to him, asking him “Did you make that statement?” Id. at 416, 85 S.Ct. at 1075. The statement incriminated Douglas by naming him as the person who fired the shotgun blast which wounded the victim. Id. at 417, 85 S.Ct. at 1076. Although the alleged co-conspirator’s refusals to answer were not technically testimony, the Supreme Court held that the questioning was reversible error because “the [prosecutor’s] reading may well have been the equivalent in the jury’s mind of testimony that [the co-conspirator] in fact made the statement____” Id. at 419, 85 S.Ct. at 1077. See ABA Standard 3-5.8 commentary, at 107 (“Assertions of fact not proven amount to unsworn testimony of the advocate and are not subject to cross-examination.”)

The attempted impeachment of Brown with his alleged prior inconsistent statement that Petitioner was the shooter necessarily increased the possibility that Petitioner might be convicted on the basis of this unsworn evidence. The repeated questions of the prosecutor, accompanied by the unavoidable impression to the jury that Brown had made statements to the prosecutor that Elmer was the shooter, cannot be considered harmless error.

IV.

Petitioner challenges the sufficiency of the evidence, claiming that he lacked the specific intent to commit the crimes of conspiracy to shoot with intent to disable and malicious injury to eye. The test an appellate court applies in assessing the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the State, “the verdicts were supported with sufficient evidence—that is, evidence that either showed directly, or circumstantially, or supported a rational inference of facts which could fairly convince a trier of fact of the defendant’s guilt of the offenses charged beyond a reasonable doubt.” State v. Albrecht, 336 Md. 475, 479, 649 A.2d 336, 337 (1994); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979).

Upon our independent review of the record, we conclude that the evidence was sufficient to support the verdict. Several witnesses testified that Brown and Elmer had left the development after the initial rock-throwing incident. Witnesses also testified that after returning to the development, Elmer pointed a shotgun out of the window of the car. The jury rationally could have inferred that Brown and Elmer left the development to retrieve this shotgun. Several witnesses testified that Elmer fired the shotgun; he also had nine shotgun shells in his pockets when he was arrested. There was sufficient evidence for the jury to infer that Brown and Elmer left the development to retrieve a shotgun, and that Elmer fired the shotgun in retaliation for the earlier rock-throwing incident.

Assuming that the jury believed that Brown, and not Elmer, was the shooter, there was sufficient evidence for a rational jury to infer that Elmer was at least an aider and abettor to the shooting. The jury could have inferred that Elmer was actively involved in a plan to retrieve a shotgun, return to the development, and retaliate against the rock-throwers. Accordingly, we shall reverse the judgment and remand for a new trial.

JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED, CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR CECIL COUNTY, AND REMAND CASE TO THAT COURT FOR NEW TRIAL. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY CECIL COUNTY.

Concurring & Dissenting Opinion by CHASANOW, J., in which RODOWSKY, J., joins.

1 . Unless otherwise indicated, all statutory references herein shall be to Maryland Code (1957, 1992 Repl. Vol.), Article 27. Article 27, § 386 was repealed by Acts of 1996, ch. 632, § 1, effective October 1, 1996. Article 27, § 385 was repealed by Acts of 1996, ch. 632, § 1, effective October 1, 1996. Article 27, § 120 was repealed by Acts of 1996, ch. 632, effective October 1, 1996. Petitioner was granted a new trial for unlawful shooting with intent to disable.

2 . On the preservation issue, Petitioner points out that he argued not only the flagrant violation of Rule 5-410, but also the fact that the statements were made by Brown's lawyer, not Brown, and that the improper and prejudicial nature of the prosecutor’s questions was reversible error. At trial, Petitioner made a general objection and argued the prejudicial impact of the question before the Court of Special Appeals. Accordingly, we shall consider his argument.

3 . The Court of Special Appeals reversed Brown’s conviction in a separate appeal. Brown v. State, 120 Md.App. 743 (1998) (holding that appellant was entitled to a new trial because the State improperly cross-examined about statements he allegedly made during plea negotiations).

4 . The issue arises as to when the State has a duty to introduce the factual predicate for a potentially prejudicial question posed on cross-examination. Some cases have noted that although the government does not have a duty in every case to introduce such evidence, when the prosecution "asks damning questions that go to a central issue in the case, these questions must be supported by evidence available or inferable from the trial record.” United States v. Elizondo, 920 F.2d 1308, 1313 (7th Cir.1990) (citation omitted). When the factual predicate is based upon testimony which can only be supplied by the prosecutor alone, other significant issues arise. See generally, Annot., Prosecuting Attorney as Witness, 54 A.L.R.3d 100 (1973 & 1995 Supp.).