State v. Heath

464 Md. 445

211 A.3d 458

STATE of Maryland

v.Nicholas HEATH

No. 36, Sept. Term, 2018

Court of Appeals of Maryland.

June 28, 2019

Argued by Virginia S. Hovermill, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Petitioner.

Argued by Samuel Feder, Asst. Public Defender (Paul B. DeWolfe, Public Defender of Maryland, Baltimore, MD), on brief, for Respondent.

Argued before: Barbera, C.J., Greene, McDonald, Watts, Hotten, Getty, Dale R. Cathell (Senior Judge, Specially Assigned), JJ.

Greene, J.

In the present case, we consider whether a comment made by defense counsel in an opening statement invited the State to present, as evidence, a statement made by Respondent Nicholas Heath ("Mr. Heath") indicating his intention to sell cocaine. The State urges us to apply the opening the door doctrine to the facts of the present case, and hold that defense counsel, through her opening statement, opened the door to admitting, as evidence, Mr. Heath's stated intention. To resolve this issue we explore whether defense counsel's remarks triggered the opening the door doctrine, and if so, whether the responsive evidence offered by the State was a proportional response. For reasons we shall explain, we hold that the trial court erred in admitting irrelevant evidence and abused its discretion in weighing the proportionality of the contested portion of Mr. Heath's statement. The error in doing so was not harmless; thus, we affirm the judgment of the Court of Special Appeals.

FACTUAL & PROCEDURAL BACKGROUND

Mr. Heath was charged with the murder of Tom Malenski ("Mr. Malenski") and the attempted murder of Martin Clay ("Mr. Clay"). The charges stemmed from an altercation that happened on September 25, 2014 at Ottobar, where Mr. Malenski and Mr. Clay were employed, in Baltimore City. The undisputed facts are that on the evening of September 25, 2014, Dustin Cunningham ("Mr. Cunningham") directed inappropriate comments toward Erica Davis ("Ms. Davis") and Ms. Davis's unidentified friend. Mr. Heath, in an attempt to quell any hostility between Mr. Cunningham and Ms. Davis, offered an apology to Ms. Davis and her friend on Mr. Cunningham's behalf. Ms. Davis did not accept the apology. She, instead, directed Mr. Heath to inform Mr. Cunningham that he needed to apologize himself for the comments that he had made.

Eventually, after continued antagonism between the individuals, the bouncers removed Mr. Cunningham from the bar. Both Mr. Clay and Mr. Malenski aided the bouncers in removing Mr. Cunningham. Mr. Malenski was not working at Ottobar that night and Mr. Clay had gotten off of work at 11:00 p.m., but each were "hanging out" at Ottobar at the time of the altercation. Mr. Cunningham claimed that, once outside, the bouncers attempted to beat him up, so he ran away. Mr. Clay and Mr. Malenski ran down the street after Mr. Cunningham, but he successfully escaped. Thereafter, Mr. Clay and Mr. Heath offered conflicting stories as to what happened.

According to Mr. Clay, while he and Mr. Malenski were walking back to Ottobar, Mr. Heath came towards them with a knife. At first, Mr. Clay thought that Mr. Heath had punched him in the face, but he ultimately realized that he had been cut. Mr. Clay testified that, while Mr. Malenski was trying to "get in between" Mr. Clay and Mr. Heath, Mr. Heath slashed Mr. Malenski's throat.

Offering a different version of the events, Mr. Heath, in his recorded statement to the police, indicated that upon leaving Ottobar, he headed in the direction of where Mr. Cunningham had fled. According to Mr. Heath, the men who had chased Mr. Cunningham, including Mr. Clay and Mr. Malenski, were walking back toward Ottobar. The group of men approached Mr. Heath while he was trying to pass them. Mr. Heath's path was blocked, and the men began arguing with him. Mr. Heath claimed that he saw Mr. Malenski pull out a knife. Mr. Heath, in trying to defend himself from an attack, told the men to back off. He explained that Mr. Clay probably got cut in the face while Mr. Heath was defending himself against the attack. Mr. Heath said that he intended to cut Mr. Malenski's deltoid muscle and that would have prevented Mr. Malenski from raising his arms. Mr. Heath stated that he was "merely trying to ‘disable’ " Mr. Malenski. Unfortunately, according to Mr. Heath, Mr. Malenski lunged forward causing Mr. Heath to accidentally cut Mr. Malenski's neck instead of his shoulder.

Although Mr. Clay's and Mr. Heath's stories diverged, it is undisputed that Mr. Heath cut Mr. Clay's face and Mr. Malenski's throat. Furthermore, it is uncontested that during the confrontation, Mr. Heath cut one of Mr. Malenski's arteries, which resulted in his death. Mr. Heath was tried in the Circuit Court for Baltimore City for the first-degree murder of Mr. Malenski, the attempted first-degree murder of Mr. Clay, and other related charges. The substantive issue at trial was whether Mr. Heath acted with criminal intent or in self-defense.

Mr. Heath did not testify at trial, so his version of the events was established by way of a recorded statement that he gave to the police during an interview on September 27, 2014. Prior to trial, and without the trial court's involvement, the parties entered into a stipulation and agreed to various redactions of Mr. Heath's statement to police.¹ The redacted portions of the statement related to Mr. Heath's selling of drugs as his primary source of income.

During her opening statement at trial, Mr. Heath's counsel made the following comment about Mr. Heath's purpose for going to Ottobar:

Ladies and gentlemen, the young man that sits here [next to counsel] is Nicholas Heath. And just as the State described to you in regards to [Mr. Malenski and Mr. Clay], he too loved music, liked to hang out, had friends, was busy doing tattoos, that's one of his primary sources of income in order to pay a lawyer to get his wife from England to the United States. That was his goal and that was his purpose to stop by the Ottobar that night. His friend, Dustin Cunningham says lots of people there have tattoos or had tattoos, this is a good source.

(Emphasis added).

The State did not object during defense counsel's opening statement. The State waited until its case-in-chief to respond to defense counsel's remark in opening that Mr. Heath was at Ottobar to find clients for his tattoo business.² Citing that remark, the State moved to unredact a portion of Mr. Heath's statement to the police, in which he said that he went to Ottobar intending to sell "white."³ Specifically, the State sought to unredact and admit into evidence the following portion of Mr. Heath's statement:

I mean look at nobody's being violent man. Nobody's went in there starting trouble. I went in there to sit down to sell a got damn bit of white that they, I'm just trying to make a fucking living. And everybody around me is gotta act like an asshole. That's all I wanted to do. You know am I wrong? Yeah.

(Emphasis added). The State argued that defense counsel's remark, that Mr. Heath went to Ottobar for purposes related to his tattoo business, contradicted Mr. Heath's statement to the police and opened the door to Mr. Heath's "true" purpose for being at Ottobar, his intent to sell "white."⁴ Defense counsel argued that opening statements are not evidence. Furthermore, according to defense counsel, regardless of the opening the door doctrine, the portion of the statement offered by the State was inadmissible bad acts evidence. Defense counsel asserted that Mr. Heath's statement was "highly prejudicial [with] no probative [value]" and therefore should not be admitted.

The trial court weighed the probative value and prejudicial effect of the contested portion of Mr. Heath's statement and reasoned that Mr. Heath's explanation for "being present [at Ottobar] ..." was probative of "the manner in which he is alleged to have conducted himself that evening." The trial judge expressed that he "would not have stricken that testimony, although some of the things which have been read, not everything would appear to be fully admissible even under the probative greater than prejudicial [sic] value of standard." Ultimately, the trial court "permit[ted] the State to unredact the testimony with regard to [Mr. Heath's] statement as to why he was there that night with regard to certain business operations."

After the trial court's ruling, defense counsel requested, and was granted, a continuing objection to references to Mr. Heath's involvement in the "possession and distribution of controlled dangerous substances[.]" Additionally, the prosecutor clarified that the trial judge's ruling was limited to the portion of Mr. Heath's statement in which he says that he went to Ottobar intending to sell "white," and "that the rest of the references to [Mr. Heath] selling drugs is not probative[.]" The trial judge said, "Right." He explained that other references to selling drugs in Mr. Heath's statement to the police are "beyond the pale ... it's relevant only to that night and [Mr. Heath's] presence at Ottobar."

Later in the trial, Mr. Heath's statement to the police, including the portion in which he said that he went to Ottobar intending to sell "white," was admitted into evidence over defense counsel's objection. A recording of Mr. Heath's statement was played in open court for the jury. Mr. Heath did not offer any evidence tending to establish that he visited Ottobar for reasons related to his tattoo business, or for any other reason. Ultimately, the jury returned a verdict against Mr. Heath of guilty to involuntary manslaughter and second-degree assault.

Mr. Heath appealed his convictions to the Court of Special Appeals. In an unreported opinion, our intermediate appellate court reversed the trial court's ruling that the door had been opened. Heath v. State , No. 2736, Sept. Term 2015, 2018 WL 3085156, at *6 (Md. Ct. Spec. App. June 21, 2018). First, the intermediate appellate...