Ford v. State

462 Md. 3

197 A.3d 1090

David Leander FORD

v.STATE of Maryland

No. 11, Sept. Term, 2018

Court of Appeals of Maryland.

October 26, 2018

Reconsideration Denied December 11, 2018

Argued by Jeffrey M. Ross, Asst. Public Defender (Paul B. DeWolfe, Public Defender of Maryland, Baltimore, MD), on brief, for Petitioner.

Argued by Jessica V. Carter, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Respondent.

Argued before: Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.

Watts, J.

This case concerns two issues involving the admissibility of evidence in a murder trial. First, we consider admissibility of character evidence of the victim under Maryland Rule 5-404(a)(2)(C), which provides: "In a homicide case, the prosecutor may offer evidence of the alleged victim's trait of peacefulness to rebut evidence that the victim was the first aggressor." Here, the trial court, over defense counsel's objections, permitted the State, Respondent, to present evidence of the alleged victim's trait of peacefulness in its case-in-chief during direct-examination of two State's witnesses to rebut remarks made by defense counsel in opening statement that the defendant was not the aggressor and had acted in self-defense.

The second issue concerns the admissibility of evidence of the defendant's post-crime conduct as consciousness of guilt, and specifically, the determination that such evidence was relevant and that the danger of unfair prejudice or considerations of cumulativeness did not substantially outweigh the probative value of the evidence. Here, evidence was adduced at trial that, after stabbing the victim, the defendant fled to his ex-girlfriend's home. Over objection, the trial court permitted the State to elicit testimony from the defendant's ex-girlfriend that, the morning following commission of the crime, she asked him to leave, and the defendant cursed at her, slammed the front door, and left. The trial court admitted evidence of the defendant's reaction to being told that he had to leave his ex-girlfriend's home as evidence of consciousness of guilt.

As to the first issue, we hold that Maryland Rule 5-404(a)(2)(C) does not permit a prosecutor to offer evidence of an alleged victim's trait of peacefulness to rebut statements made by defense counsel in opening statement because opening statements are not evidence, and Maryland Rule 5-404(a)(2)(C) specifically requires that "evidence that the victim was the first aggressor" be introduced before the prosecutor may rebut such evidence with "evidence of the alleged victim's trait of peacefulness[.]" (Emphasis added). Moreover, we hold that defense counsel's remarks during opening statement did not "open the door" for the prosecutor to present evidence of the alleged victim's trait of peacefulness. This is so because, even if defense counsel's remarks placed the victim's actions and character at issue and somehow indicated that the defendant would perhaps offer evidence to prove that the victim was the aggressor, Maryland Rule 5-404(a)(2)(C) definitively requires evidence that the victim was the first aggressor—not merely a statement indicating that some evidence might possibly be introduced—to trigger the State's ability to rebut with evidence of the victim's trait of peacefulness. Accordingly, the trial court erred in concluding that defense counsel had "opened the door" for the State to present evidence of the victim's trait of peacefulness under Maryland Rule 5-404(a)(2)(C), and in permitting the State, over objection, to elicit testimony in its case-in-chief from State's witnesses that the victim was a "quiet, nice person[, n]ice to everybody[,]" and "a cool person[, h]e was never, you know nasty or hostile, or anything." Nevertheless, we hold that the error was harmless beyond a reasonable doubt.

As to the second issue, we hold that the trial court properly permitted the defendant's ex-girlfriend to testify about the defendant's behavior and reaction to being told that he had to leave her home—specifically, that he "cursed [her] out, and he slammed back the front door and left"—as evidence of consciousness of guilt. We conclude that the trial court did not err in determining that this evidence of the defendant's post-crime conduct was relevant to the defendant's guilty state of mind—specifically, that he was staying at his ex-girlfriend's home to hide from law enforcement and did not want to leave because he wanted to continue hiding out and elude capture. Additionally, we conclude that the trial court did not abuse its discretion in concluding that the danger of unfair prejudice or considerations of cumulative evidence did not substantially outweigh the probative value of the evidence.

BACKGROUND

On August 7, 2015, in the Circuit Court for Anne Arundel County, a grand jury indicted David Leander Ford, Petitioner, for first-degree premeditated murder, second-degree murder, manslaughter, and carrying a weapon openly with the intent to injure. The charges arose out of an incident that occurred on the evening of July 8, 2015, during which Ford allegedly engaged in an altercation with Mohamed Bashir Eltahir and fatally stabbed him.

From September 19 to 22, 2016, the circuit court conducted a jury trial. At the start of trial, the prosecutor nol prossed the charge of first-degree premeditated murder. Also, at the start of trial, Ford's counsel moved in limine to exclude evidence that Ford had a "temper." The prosecutor requested that the circuit court reserve ruling on the matter to "see how the trial plays out before [ ] mak[ing] an ultimate ruling on whether that evidence becomes relevant[.]" The circuit court agreed with the prosecutor and stated that it would "reserve on the issue of [Ford] ha[ving] a temper."

During the State's opening remarks, the prosecutor set forth the State's theory of the case, positing that Ford instigated a verbal argument with Eltahir, and was responsible both for escalating the argument to a physical altercation and for subsequently introducing a knife into the physical altercation. Specifically, the prosecutor stated as follows. On the evening of July 8, 2015, Eltahir and his friend, Everett Kane, purchased alcoholic beverages, and took the drinks and sat on a park bench together. According to the prosecutor, Eltahir was "relaxed" and "enjoying himself." Others joined the two men, including Ford, who "made a crude comment about" a woman walking by, equating her to Eltahir's sister. Eltahir asked Ford to stop. Ford declined to stop and instead escalated the verbal exchange by jumping off the park bench, continuing to swear, and "get[ting] into [Eltahir]'s face." In response, Eltahir stood and "argued right back." Others tried to defuse the situation, but the two men continued to argue until Ford swung his fist and struck Eltahir in the chest. According to the prosecutor, Ford "was the first one to make th[e] argument physical." Ford kept hitting Eltahir, but Eltahir "finally got a hit in too, and he knocked [Ford] down to the ground." When Ford stood up, others saw him stab Eltahir in the chest with a knife. According to the prosecutor, the "knife went straight into [Eltahir]'s chest, and into his heart[,]" and he died shortly thereafter. Ford fled the scene, eventually going to the home of Sheila Brown, his ex-girlfriend, whom he told that he had "cut a boy."

Ford's theory of the case was that he acted in self-defense. During Ford's opening statement, his counsel posited that, although Ford insulted Eltahir, Eltahir was younger, bigger, faster, and stronger than Ford, and Eltahir was the aggressor who initiated physical contact. Specifically, Ford's counsel stated:

He had a choice to defend himself or he had a choice to get badly injured, perhaps even killed.

What [ ] Ford chose to do that night was to defend himself....

[Eltahir] is a security guard, he was drinking that night. [Yo]u are going to hear evidence that [Eltahir] is younger than [ ] Ford, faster than [ ] Ford, bigger than [ ] Ford, and stronger than [ ] Ford. And [ ] Ford is not the person [who] initiates any physical contact, that's [Eltahir].

So [ ] Ford finds himself being attacked by someone that's larger, someone that's stronger, someone that's faster, and someone that's bigger. And [ ] Ford makes a choice to defend himself. [ ] Ford is forced to react. The only goal that [ ] Ford had that day was to defend himself, and to make sure that he didn't get hurt.

* * *

[Eltahir]'s death is certainly tragic, but it is not at all intentional. So I ask you to listen to all the evidence that's presented before you make a decision and you'll realize that [ ] Ford was in a situation where he was overmatched. He was in a situation where he was reacting out of fear, and that he certainly wasn't the aggressor.

He made an offhand verbal comment but he was not the physical aggressor. And most importantly he had a reasonable belief that he was in [im]minent danger. And he had that belief because he was. He was in [im]minent danger.

He was forced to react and he had absolutely no intent to kill him.

At the close of opening remarks, the prosecutor requested a brief bench conference. At the bench conference, the prosecutor argued that Ford's counsel's assertion that Eltahir was the aggressor "opened the door" for the State to introduce evidence "about whether [Ford] has a temper or not," and "general evidence about" Ford's character for peacefulness or aggressiveness. According to the prosecutor, Eltahir's "nature for peacefulness [was] fair game at th[at] point, and because [the defense was] claiming self-defense, [Ford]'s nature bec[a]me[ ] fair game." Ford's counsel objected. After hearing argument from the parties, at this point, the circuit court ruled that Ford's counsel's statements during opening remarks had not opened the door "sufficiently" for the State "to use it in [its] case[-]in[-]chief."

As the first witness for the State, Barbara McQueen testified...