Martin v. State

REPORTED

IN THE COURT OF SPECIAL APPEALS
OF MARYLAND

No. 2413

September Term, 2010

CHARLES BRANDON MARTIN

v.

STATE OF MARYLAND

Krauser, C.J.,
Graeff,
Hotten,
JJ.

Opinion by Krauser, C.J.

Filed: July 30, 2014
Convicted, after a jury trial in the Circuit Court for Anne Arundel County, of

attempted first-degree murder,1 Charles Brandon Martin, appellant, presents seven issues for

our review. Divested of argument, they are:

I. Whether the circuit court erred in failing to suppress text
message evidence obtained by law enforcement officers
from the victim’s cell phone;

II. Whether the circuit court erred in allowing a State’s
DNA expert to testify regarding the results of DNA tests
she did not personally perform;

III. Whether the circuit court erred in not requiring the State
to provide the defense with a bill of particulars after the
State purportedly changed its prosecution theory;

IV. Whether the circuit court erred in finding that there was
sufficient evidence to convict appellant of attempted
first-degree murder;

V. Whether the circuit court erred in instructing the jury that
appellant was charged with being an accessory before the
fact rather than an aider and abettor;

VI. Whether the circuit court erred in accepting purportedly
inconsistent verdicts; and

VII. Whether the circuit court erred in considering evidence
of a letter allegedly written by appellant and then

1
Martin was charged with (I) attempted first-degree murder; (II) attempted
second-degree murder; (III) first-degree assault; (IV) second-degree assault; (V) use of a
handgun in the commission of a felony; (VI) use of a handgun in the commission of a crime
of violence; (VII) carrying a handgun; (VIII) reckless endangerment; (IX) conspiracy to
commit first-degree murder; and (X) solicitation to commit murder. With the exception of
counts I and X, all other charges were ultimately either nol prossed or were lesser included
offenses subsumed within the charge of attempted first-degree murder. He was acquitted of
solicitation to commit murder.
purportedly sentencing appellant for a crime of which he
had been acquitted.

After argument before this Court, the parties filed a joint motion to stay any further

action by this Court, until Williams v. Illinois, No. 10-8505, had been decided by the

Supreme Court, and Dzikowski v. State, No. 15, September Term, 2011, by the Court of

Appeals, as those pending decisions might affect the resolution of the issues presented in the

instant case. Because those cases did, in fact, involve many of the same issues presented by

this appeal, we granted their motion and deferred a decision in this matter.

Subsequently, the Supreme Court rendered a decision in Williams, 567 U.S. __, 132

S. Ct. 2221 (2012), as did the Court of Appeals in Dzikowski, 436 Md. 430 (2013). We

therefore now consider the issues raised by this appeal in light of those decisions.2

FACTS 3

On October 27, 2008, Jodi Lynne Torok, the victim, was found at her home in

Crofton, Maryland, with a gunshot wound to her head. Having survived that wound, the

victim testified, at the trial below, that she had been in a romantic relationship with Martin,

who was married to someone else, and that about eight or nine weeks before the shooting,

she had become pregnant with his child. After the victim informed Martin of her condition,

2
Neither party has requested an opportunity to re-brief the issues presented in Williams
or Dzikowski, nor do we find it necessary for them to do so.
3
As required by Maryland law, we are presenting the facts in a light most favorable
to the State, as the prevailing party below. See, e.g., Davis v. State, 207 Md. App. 298, 303
(2012).

2
he angrily demanded that she obtain an abortion. Although she had, at first, agreed to do so,

she later changed her mind and decided to have the baby. Upon informing Martin of her

change of mind, the victim advised him of her intention “to go to court and take him for child

support.” Predictably, that advisement led to cooling of their relationship.

Subsequently, on the day of the shooting, at about 3:00 p.m., the victim was talking

on the phone, at her home, with a close friend, Blair Wolfe,4 when a man, purporting to be

a salesman, knocked on her front door. She then ended the call to respond to the “salesman,”

but thereafter never called Ms. Wolfe back or answered any of Wolfe’s subsequent telephone

calls. Growing increasingly concerned but unable to take any action on her own,5 Ms. Wolfe

telephoned Jessica Higgs, the victim’s roommate, and requested that she leave work and

return home to make sure that the victim was safe. Upon arriving at the residence that she

shared with the victim, Ms. Higgs found the front door unlocked and the victim lying on the

foyer, unconscious and bleeding from a gunshot wound to her head. Higgs immediately

called “911.”

When the first police officer arrived at the victim’s residence, he secured the scene.

Then, upon entering the residence, he found the victim, Ms. Torok, “laying in the doorway,”

“fully clothed,” still breathing, but unresponsive. There were no signs of forcible entry or

that the victim’s personal property had been disturbed.

4
At other parts of the record, her name is spelled “Blaire Wolfe.” We adopt the
spelling used in the State’s discovery disclosure. Ms. Wolfe did not testify at Martin’s trial.
5
At the time of this telephone call, Ms. Wolfe was living in Pittsburgh.

3
When paramedics arrived at the scene, they transported the victim to the Shock

Trauma Center at the University of Maryland Hospital in Baltimore City, where she remained

for nearly a month. As a result of the gunshot wound, the victim’s pregnancy was

terminated, and she suffered severe and disabling injuries. Neither during that time nor

thereafter could she recall the events that took place, from the end of her telephone

conversation with Ms. Wolfe on October 27th until Thanksgiving, one month later.

The evidence recovered by the police at the scene of the shooting included a Gatorade

bottle, which appeared to be fashioned into a home-made silencer;6 a spent projectile as well

as a spent shell casing; and the victim’s Blackberry cell phone.

Gatorade bottle/silencer

From the Gatorade bottle, police evidence technicians extracted “a human hair” of

“Negroid origin”7 and saliva from the mouth of the bottle. DNA testing of both linked the

bottle to Martin.8

6
The mouth of the Gatorade bottle was wrapped with two layers of tape, and at the
bottom of the bottle was a hole. The tape exhibited a distinct, rectangular shape, a shape
suggesting that the mouth of the bottle had been pressed against the barrel of a
semi-automatic handgun. Furthermore, sooty residue lined the bottle’s inside surface at the
location of the hole, indicating that that opening at the bottom of the bottle had been made
by an exiting bullet. It appeared, to police, to be a home-made silencer.
7
Martin is an African-American male.
8
Martin’s mitochondrial DNA profile was the same as that derived from the hair
strand. One of the State’s expert witnesses testified at trial that only about 0.06 per cent of
the population of North America shares the same mitochondrial DNA profile as that derived
from the hair fragment found on the Gatorade bottle.
(continued...)

4
The victim testified that neither she nor Ms. Higgs drank Gatorade, but that Martin

did and often.9 Martin’s fondness for Gatorade was later confirmed by the officer who drove

him to the Anne Arundel police station, who testified that, on the way to the station, he and

Martin stopped at a convenience store, where Martin purchased a bottle of Gatorade to drink.

Granted immunity from prosecution for the shooting and possibly for other unrelated

charges, Michael Bradley testified that, on the day of the shooting, he; his brother, Frank

Bradley; Martin; and Jerry Burks, an acquaintance of Martin, were together at Maggie

McFadden’s house “about noon” and that he observed Frank Bradley carrying “some white

. . . medical tape” and a Gatorade bottle upstairs to McFadden’s bedroom, where he was

joined by Martin. Then, according to Michael Bradley, Martin and Burks left together,

“approximately 1:30, 2:00” p.m., and returned after 3:00 p.m. but before 6:30 p.m. the same

day.10

8
(...continued)
DNA testing of a swab of saliva taken from the mouth of the bottle revealed that it
contained “a mixture of DNA from at least three individuals,” at least one of whom was
female and another a male. The test results excluded “approximately 94 percent of the
Caucasian population,” as well as “approximately 96 percent of the African-American
population,” but among the males, who could not be excluded, was Martin. And, among the
females, who could not be excluded, was the victim, Jodi Torok.
9
The victim stated that Martin drank Gatorade “a lot.”
10
The State’s theory was that Burks was the shooter and that he had been solicited by
Martin. Burks was tried separately, six months before Martin’s trial, on charges that included
attempted first- and second-degree murder and conspiracy to commit murder. He was
acquitted by a jury on all counts. Five days before Martin’s trial, the State moved in limine
to “exclude from trial any evidence that Jerold Burks was acquitted of the charges” in that
(continued...)

5
Finally, Sheri Carter, one of Martin’s former girlfriends,11 testified that Martin,

approximately one month before the shooting, while at her residence, used a computer to

conduct internet research on how to assemble a home-made silencer. She further stated that,

during the first week of November 2008, approximately one week after the shooting and

shortly after Martin had been questioned by police, Martin took the computer from her

apartment, telling her “that [they] had looked up so many crazy things on the internet that in

case [Carter’s] apartment got searched [Martin] didn’t want it found there.” Martin, in her

words, then “got rid of” the computer.

Ballistic evidence

The bullet recovered by police, a .380 caliber bullet, and the shell casing that was

found, could have been fired, according to a State’s expert witness, from a semi-automatic

firearm. Such a firearm could have been manufactured by any one of sixteen different

manufacturers, which was consistent with Martin’s purchase, in 2003, of two .380 caliber

semi-automatic handguns made by Bryco Arms, one of those sixteen manufacturers.12

Moreover, Sheri Carter testified that, in September and October of 2008, the time period just

10
(...continued)
case, and, on the day trial commenced, the court granted that motion. Thereafter, the State
nol prossed the conspiracy charge against Martin.
11
In addition to his wife, Martin had at least three girlfriends with whom he
maintained intimate relations.
12
The parties stipulated that, in 2004, one of those handguns “was transferred to
another party.”

6
before the shooting, she had observed Martin carrying a “small, silver, [black-handled],

semi-automatic” handgun.

The firearm itself was never found. The testimony of Michael Bradley suggested why

that was so. According to Michael Bradley, when Martin returned to McFadden’s home the

evening of the shooting, he saw Martin give a brown paper bag to Frank Bradley and tell

Bradley to “get rid of this.”

Victim’s cell phone

Finally, the last of the four items found at the victim’s residence was her Blackberry

cell phone. Text messages extracted from that phone by police confirmed that Martin had

exchanged several text messages with the victim on the day of the shooting.13

Martin’s statement

The day after the shooting, Martin gave a statement to police. During the

interrogation, Martin downplayed his relationship with Ms. Torok, the victim, telling

detectives that he did not know her last name and that he was unsure where she lived, but he

conceded that he had previously been to her house. And, although he was “highly

doubt[ful]” that he was the father of the victim’s baby, since they “hadn’t had any contact,”

he admitted to police that he had agreed to provide money to her to “help her out.” Finally,

Martin claimed that, on the day of the shooting, he was at home with his wife and children

13
Police technicians used a device known as a universal memory exchanger (“UME”),
that extracts the data stored on a cell phone, including text messages.

7
until mid-day and that later he had visited “Frankie” and “Mike” Bradley, who were friends

of his, arriving at “around” 1:00 p.m., staying with them until about 4:30 p.m., and then

returning home.

DISCUSSION

I.

Martin contends that the circuit court erred in denying his motion to suppress text

messages retrieved by police from the victim’s cell phone, in violation of the Maryland

Wiretap Act, Maryland Code (1974, 2006 Repl. Vol.), § 10-401 et seq. of the Courts &

Judicial Proceedings Article (“CJP”).14 Specifically, Martin claims that, in reading and, later,

recording the text messages from the victim’s Blackberry cell phone, the police had

“intercepted” those text messages and were therefore required, in accordance with the

strictures of the Maryland Wiretap Act, to apply for a court order before doing so, which they

14
Martin does not invoke the Fourth Amendment, presumably because he lacks
standing to challenge a warrantless search of another person’s cell phone. Rakas v. Illinois,
439 U.S. 128, 133-34 (1978) (“‘Fourth Amendment rights are personal rights which, like
some other constitutional rights, may not be vicariously asserted.’”) (quoting Alderman v.
United States, 394 U.S. 165, 174 (1969)). Under the Maryland Wiretap Act, he would,
assuming that there was an “interception,” qualify as an “aggrieved person,” that is, “a person
who was a party to any intercepted wire, oral, or electronic communication or a person
against whom the interception was directed.” Md. Code (1974, 2006 Repl. Vol.), Courts and
Judicial Proceedings Article, § 10-401(10) (“CJP”).

During the pendency of this appeal, the Maryland Wiretap Act was amended several
times. The quoted definition now appears at CJP § 10-401(1). Unless otherwise stated, all
statutory references in this opinion are to the versions of the statutes that were in effect at the
time of the crime.

8
did not do. CJP § 10-406(a). Furthermore, the State’s use of evidence derived from those

text messages, maintains Martin, violated the Maryland Stored Communications Act, CJP

§ 10-4A-01 et seq.

When the police arrived at the victim’s residence, they found, inside her home, her

cell phone. Text messages that were later extracted, by law enforcement personnel, from that

phone showed, among other things, that Martin and the victim had exchanged several text

messages on the day of the shooting. At 8:23 a.m. on the day of the shooting, Martin sent

the victim a text message asking, “What time do u work[?]” Less than a minute later, the

victim replied, “I’m off.” At 9:29 a.m., an hour later, the victim, having received no reply

from Martin, sent another text message, stating, “Hello.” But that greeting elicited no

response from Martin until 5:11 p.m., a little more than two hours after the shooting, when

he sent a message stating, “I got some stuff with the kids to about 7 so any time after how

much did u need[?]”

Based in part on the text messages retrieved from the victim’s cell phone and in part

on Martin’s own cell phone text messages, search warrants were obtained for Martin’s home

and vehicle; for Maggie McFadden’s home; for Jerry Burks’s home and computer; as well

as for samples of Martin’s saliva and hair. Among the items recovered, upon the execution

of those warrants, were Martin’s saliva and hair samples, as well as a roll of white medical

tape, from McFadden’s home, that, in the words of a State expert, “exhibited the same

characteristics as” the medical tape found on the home-made Gatorade silencer.

9
Before trial, Martin filed a “motion to suppress wiretap,” contending that the police

had violated the Maryland Wiretap Act by “unlawfully intercept[ing]” the text messages from

the victim’s cell phone and requesting that the court “suppress the contents of any intercepted

wire, oral or electronic communication and evidence derived therefrom.” After several

hearings were held, the circuit court declined to suppress the text messages recovered from

the victim’s cell phone, holding that the retrieval of those messages did not violate the

Maryland Wiretap Act.15 It also declined to suppress any derivative evidence, declaring that,

even if all of the references to both the victim’s and Martin’s cell phone text messages had

been deleted from the warrant affidavits, there was still probable cause to issue a search

warrant for, among other things, Martin’s saliva and hair samples.

The Maryland Wiretap Act states that it is “unlawful for any person to . . . [w]illfully

intercept, endeavor to intercept, or procure any other person to intercept or endeavor to

intercept, any wire, oral, or electronic communication.”16 CJP § 10-402(a)(1). It defines

“intercept” as “the aural or other acquisition of the contents of any wire, electronic, or oral

communication through the use of any electronic, mechanical, or other device,”

CJP § 10-401(3), and describes an “electronic communication” as “any transfer of signs,

signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or

15
The circuit court granted Martin’s motion in part, ordering the suppression of all text
messages that the police had obtained from Martin’s cell phone service provider.
16
CJP § 10-402(c) sets forth a detailed list of acts that are “lawful” under the Maryland
Wiretap Act, including a number of exceptions to the prohibition under subsection (a)(1), but
none of these exceptions is applicable to the instant case.

10
in part by a wire, radio, electromagnetic, photoelectronic, or photooptical system.”

CJP § 10-401(11).17

Although there are no Maryland appellate decisions18 that have specifically construed

the term “intercept,” there are a number of federal appellate decisions that have, under the

Federal Wiretap Act, 18 U.S.C. § 2510 et seq., the federal analogue of the Maryland Wiretap

Act. In language that is largely mimicked by the Maryland statute,19 the federal act provides

that “any person who intentionally intercepts, endeavors to intercept, or procures any other

person to intercept or endeavor to intercept, any wire, oral, or electronic communication”

commits a crime and is further subject to civil suit. 18 U.S.C. § 2511(1)(a). Both acts define

“intercept” and “electronic communication” in nearly20 identical terms. Compare 18 U.S.C.

17
The quoted definitions now appear at CJP § 10-401(10) and (5), respectively (the
latter with slight changes that are not relevant to our analysis).
18
During the pendency of this appeal, the Court of Appeals decided Davis v. State, 426
Md. 211, 218 (2012), which held that the “interception of a wire, oral, or electronic
communication, for the purposes of the Maryland wiretap statute, occurs where law
enforcement officers capture or redirect first the contents of the communication overheard
by the wiretap and where they heard originally the communication.” In that case, however,
it was undisputed that an “interception” had occurred, id. at 213-14, and the Court had no
need or reason to specifically consider the question of what constitutes an “interception.”
There, it was only concerned with the issue of where that interception took place for
jurisdictional purposes. Id. at 214.
19
The Maryland statute provides, among other things, that “it is unlawful for any
person to . . . [w]illfully intercept, endeavor to intercept, or procure any other person to
intercept or endeavor to intercept, any wire, oral, or electronic communication.” CJP
§ 10-402(a)(1).
20
“Intercept” is defined identically in both the Maryland and Federal Wiretap Acts, but
(continued...)

11
§ 2510(4) and (12) with CJP § 10-401(3) and (11) (defining, respectively, “intercept” and

“electronic communication”). See also Davis v. State, 426 Md. 211, 220 & n.3 (2012)

(observing that definitions of “intercept” in Maryland and Federal Wiretap Acts are

“identical[].”). We therefore turn to the pertinent federal appellate decisions interpreting

those terms for guidance. Id. at 223.

We begin with Steve Jackson Games, Inc. v. United States Secret Service, 36 F.3d 457

(5th Cir. 1994). There, the United States Court of Appeals for the Fifth Circuit held that the

seizure of a computer, in which were stored private e-mail messages sent from remote

computers but not as yet read by their intended recipients, was not an “intercept” of those

messages under the federal act, though they were clearly “electronic communications.” In

addressing the question of what constituted an “intercept” of “electronic communications”

at that time, the federal appellate court observed that there was a “[c]ritical” difference in the

definitions of two categories of communication, “wire communication” and “electronic

communication,” both of which fell within the federal statutory prohibition against unlawful

“interception”: Both categories of communication included the “transfer” of information,

but a “wire communication” further encompassed “any electronic storage of such

communication,” (which it no longer does, as we shall later explain), while “electronic

communication” did not. Steve Jackson Games, 36 F.3d at 461. This textual difference, the

20
(...continued)
“electronic communication” is not.

12
Fifth Circuit believed, evidenced a Congressional intent that the term “intercept” be applied

to “electronic communication[s]” only when those communications are in transit and not

when they are in electronic storage. Id. at 461-62. Because the electronic communications

at issue in Steve Jackson Games were in storage when Secret Service agents obtained them,

the Fifth Circuit held that there had been no “interception” of them. Id.

Other federal appellate courts have subsequently adopted this construction of

“intercept.” For example, in Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002),

the United States Court of Appeals for the Ninth Circuit, applying Steve Jackson Games, held

that an “interception” under the Federal Wiretap Act had not occurred when an employer,

using a third-party’s password, obtained access to messages stored on a secure website

maintained by one of its employees. The Ninth Circuit suggested that the enactment of the

“PATRIOT” Act,21 which amended the Federal Wiretap Act,22 evidenced Congress’s intent

that the term “intercept” be narrowly defined. In passing the PATRIOT Act, Congress,

explained the Ninth Circuit, had “essentially reinstated the [narrow] definition of

‘intercept’—acquisition contemporaneous with transmission—with respect to wire

communications.” Id. at 878. The federal appellate court therefore concluded that the

Federal Wiretap Act did not apply where the acquired communications were in storage at the

21
Pub. L. 107-56, 115 Stat. 272.
22
The PATRIOT Act amended the Federal Wiretap Act by leaving the definition of
“intercept” intact as it applied to “electronic communication” but then deleting the reference
to electronic storage from the definition of “wire communication.” See Pub. L. 107-56,
§ 209(1)(A), 115 Stat. 283.

13
time of their acquisition. Accord United States v. Steiger, 318 F.3d 1039 (11th Cir. 2003)

(holding that anonymous informant who hacked into the accused’s computer to retrieve

images of child pornography did not, under the Federal Wiretap Act, “intercept” those

images because she did not acquire them during their transmission).23

Prior to 2002, the Maryland Wiretap Act defined “wire communication” to include

“any electronic storage of a communication as described in this paragraph,” just as the

Federal Wiretap Act did before the enactment of the PATRIOT Act. See Md. Code (1974,

1998 Repl. Vol.), § 10-401(1)(ii) of the Courts & Judicial Proceedings Article. But, in 2002,

the General Assembly enacted the Maryland Security Protection Act of 2002, which, among

other things, altered the definition of “wire communication” in the Maryland Wiretap Act so

that it would no longer include electronic storage, thereby tracking the change in definition

23
We do not consider, in this case, the interception of messages transmitted over
packet-switched communications networks. Such networks, which are today in widespread
use in cell phone and internet communications, rely upon subdivision of a digital message
into smaller “packets,” each of which is sent separately and independently (and perhaps over
a different pathway) and ultimately re-assembled into the original message upon the arrival
of all of the packets at their destination. While those packets are in transit, they may be
stored, very briefly, on high-speed switching devices, known as “routers,” which serve as
intermediate destinations for network traffic. In United States v. Szymuszkiewicz, 622 F.3d
701 (7th Cir. 2010), and United States v. Councilman, 418 F.3d 67 (1st Cir. 2005), the First
and Seventh Circuits have concluded that the Federal Wiretap Act “applies to messages that
reside briefly in the memory of packet-switch routers.” Szymuszkiewicz, 622 F.3d at 706.
But, as Szymuszkiewicz explains, such “packets” are nonetheless in transit, and, since the
entire process from start to finish occurs in at most seconds, the acquisition of “packets” from
routers is essentially “contemporaneous” with transmission. Id. Here, in contrast, the
messages at issue had been received hours before the police had obtained access to them, and
their storage, for an indefinite duration, on the victim’s cell phone, is of an entirely different
character than the transient storage of “packets” in the memory of routers during transit.

14
adopted in the PATRIOT Act and, in effect, narrowing the scope of the term “intercept.”

2002 Md. Laws, ch. 100, at 1271-72.

In light of the nearly identical definitions of “intercept” and “electronic

communication” in both the Federal and Maryland Wiretap Acts, as well as the fact that

Maryland has adopted the same narrow definition of “wire communication” that first

appeared in the PATRIOT Act, we shall join the federal courts in construing “intercept” as

requiring “acquisition contemporaneous with transmission” of the messages. Konop, 302

F.3d at 878. That is to say, an “intercept” does not occur when, conversely, the electronic

communication was in storage at the time of acquisition.24 We therefore conclude that the

police, in the instant case, did not unlawfully “intercept” text messages from the victim’s cell

phone, as those messages were, at the time of their seizure, already stored in that phone,

having already been sent and received before police gained access to them.

The Maryland Wiretap Act, moreover, prohibits only interceptions that occur “through

the use of any electronic, mechanical, or other device.” CJP § 10-401(3). Since a cell phone

is not a “device,” under the Wiretap Act, as it specifically excludes “telephone” from the

statutory definition of “electronic, mechanical, or other device,” see id. § 10-401(4),

24
“Storage,” as stated here, does not include transient storage “in the memory of
packet-switch routers.” Szymuszkiewicz, 622 F.3d at 706. As that issue is not before us, we
offer no opinion as to whether we would follow the First and Seventh Circuits in their
application of the Federal Wiretap Act to transient storage.

15
messages found in the victim’s cell phone are not covered by the Act and therefore are not

subject to exclusion under the strictures of the Act.

That the data was subsequently transferred onto a police department computer by

means of a universal memory exchanger (“UME”) is of no consequence, because the data at

issue was already in the possession of police investigators before its transfer via the UME.

As a consequence, even if we assume that the UME is a “device,” as Martin contends, it was

not used to “intercept” the text messages. Rather, the UME was used to record the data after

it had already been lawfully acquired. See United States v. Harpel, 493 F.2d 346, 350 (10th

Cir. 1974) (holding that “the recording of a conversation is immaterial when the overhearing

is itself legal”).

Finally, contrary to Martin’s claim, the Maryland Stored Communications Act

provides neither a rationale nor remedy for excluding as evidence the information obtained

from the victim’s cell phone (as well as any derivative evidence). The Stored

Communications Act forbids “obtain[ing] . . . access to a wire or electronic communication

while it is in electronic storage in an electronic communications system by (1) [i]ntentionally

accessing without authorization a facility through which an electronic communication service

is provided; or (2) [i]ntentionally exceeding an authorization to access a facility through

which an electronic communication service is provided.” CJP § 10-4A-02(a). That

prohibition, however, does not apply to the victim’s cell phone, which is not a “facility

through which an electronic communication service is provided,” but presumably to the

16
network infrastructure (such as the cell phone tower, its transmitters, and servers and

switches), which is managed and operated by cell phone service providers.

Even if there were a violation of the Maryland Stored Communications Act, exclusion

of evidence, obtained by that violation, is not an appropriate remedy. During the pendency

of this appeal, we were presented with this very issue, and we held that, given the absence

of a statutory exclusionary rule in the Maryland Stored Communications Act, we would “not

create a suppression remedy” where none existed. Upshur v. State, 208 Md. App. 383, 399

(2012), cert. denied, 430 Md. 646 (2013).

II.

Relying upon Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), Martin contends

that the circuit court’s admission of the testimony of Terry Melton, Ph.D., one of the State’s

DNA experts, regarding the results of mitochondrial DNA testing, violated the Confrontation

Clause of the Sixth Amendment because she had not personally performed that testing. In

Melendez-Diaz, the Supreme Court held that the Confrontation Clause had been violated

when a trial court allowed the prosecution to introduce into evidence test reports, purporting

to establish that a substance seized from the accused was cocaine of a specified weight,

without the testimony of anyone who performed the underlying tests, leaving the accused

without anyone to cross-examine as to the accuracy of those reports.25

25
The Supreme Court rejected the Commonwealth’s argument that Melendez-Diaz
could have subpoenaed the analysts, observing that the subpoena power “is no substitute for
(continued...)

17
We must first determine whether this issue was preserved for our review. The State

contends that it was not and we agree, for the following reasons:

Maryland Rule 5-103(a)(1) provides that “[e]rror may not be predicated upon a ruling

that admits . . . evidence unless the party is prejudiced by the ruling, and . . . a timely

objection or motion to strike appears of record[.]” Such an objection, according to Maryland

Rule 4-323(a), “shall be made at the time the evidence is offered or as soon thereafter as the

grounds for objection become apparent. Otherwise, the objection is waived.”

After the State had completed its direct examination of Dr. Melton, Martin, during

cross-examination of the doctor, objected to the admissibility of her testimony on

Confrontation Clause grounds and moved “to strike all of it.” This objection led to an

extended bench conference, during which the parties disagreed over the applicability of

Melendez-Diaz, which, at that time, was the most recent Supreme Court decision addressing

the scope of the Confrontation Clause. That conference was, in turn, followed by a brief

recess to afford the court and counsel the opportunity to research the question further.

When the bench conference resumed, the State propounded a new claim, namely, that

Martin’s belated objection had resulted in waiver of his Confrontation Clause claim. That

claim prompted a shift in the focus of the bench conference from the Melendez-Diaz issue

25
(...continued)
the right of confrontation” and that “fundamentally, the Confrontation Clause imposes a
burden on the prosecution to present its witnesses, not on the defendant to bring those
adverse witnesses into court.” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324 (2009).

18
to the discovery materials that had been provided to Martin. After examining those materials,

the circuit court made a preliminary finding that those documents had, indeed, “put[]” Martin

“on notice that there was a technician other than [Dr.] Melton involved in the case.” Having

made that tentative finding, the court felt impelled to warn Martin’s counsel that it was

“going to find waiver” unless he could “come up with something that show[ed]” otherwise.

The court then recessed for the weekend.

Upon reconvening on Monday morning, the circuit court, after entertaining additional

argument, found that Martin’s counsel had “received in discovery,” and well before trial had

begun, “a clear indication” that Dr. Melton “was not the technician who did the original lab

work”; and furthermore had been “put on notice by” Dr. Melton’s “earlier” testimony that

others had performed that work and yet “did not object.” The court therefore concluded that

Martin had waived his objection and then denied his motion to strike Dr. Melton’s testimony.

That ruling, we cannot say, was clearly erroneous. The discovery materials provided

by the State to Martin’s counsel gave Martin, in the words of the court, “a clear indication”

that Dr. Melton had not performed the laboratory work.26 Nor can we say that Dr. Melton’s

26
At a minimum, the following documents should have alerted Martin that Charity A.
Holland, M.P.H., the “Quality Manager” at Mitotyping Technologies, LLC, and perhaps
other technicians, actually performed the “bench work” necessary to test the hair sample: An
electronic document in the discovery materials, entitled “TECHNICAL REVIEW:
Mitochondrial DNA Case File 2910,” is signed, not by Dr. Melton, but by Ms. Holland. That
review is a checklist of twenty-five specific procedures that were to be followed, according
to Mitotyping Technologies laboratory protocols (which were separately included in the
discovery materials), followed by handwritten checkmarks indicating that they had been
(continued...)

19
“earlier” testimony did not, as the circuit court found, put Martin on further notice that

technicians other than Dr. Melton had actually performed the laboratory work.27 Therefore,

in accordance with Maryland Rules 4-323(a) and 5-103(a)(1), the court below did not err in

ruling that Martin’s counsel had waived his objection. See Melendez-Diaz, 557 U.S. at 314

n.3 (observing that “[t]he right to confrontation may . . . be waived, including by failure to

object to the offending evidence; and States may adopt procedural rules governing the

exercise of such objections”).

In his reply brief, Martin contends, as an alternative ground for reversal, that his trial

counsel was ineffective in failing to lodge below a timely “Confrontation” objection to Dr.

Melton’s testimony. This issue is not properly before us, however, as Martin failed to raise

26
(...continued)
satisfactorily performed. In fact, since Ms. Holland herself signed that report as the
“Reviewer,” it cannot even be assumed that she, let alone Dr. Melton, had actually performed
those routine tasks. Furthermore, Ms. Holland co-signed, with Dr. Melton, a letter dated
March 26, 2009, addressed to Anne Arundel evidence coordinator Craig Robinson,
summarizing the test results and concluding that Martin “and his maternal relatives are not
excluded as the contributor of” the hair fragment.
27
For example, Dr. Melton described the procedures followed after evidence is
received: “When evidence comes to our laboratory, . . . we have two people who receive
the evidence, who sign it in, who fill out a form that delineates where it came from, who sent
it, and what exactly it is, including what it looks like such as labeling on the outside of the
package, we take photographs of it, and then we package it with our own evidence tape on
it, our own initials, dates, and so forth, and then it’s stored in locked cupboards or cabinets
until the time it’s tested.” Later, when describing the testing procedures followed in this
specific case: “This is a package with [Mitotyping] Technologies evidence -- tamper proof
evidence tape with our case number 2910, the label K1, which indicates that it was the K
standing for known, the first known sample and initialed and dated by one of our staff
members.” (Emphasis added.)

20
it in his initial brief. Williams v. State, 188 Md. App. 691, 703 (2009) (observing that

function of reply brief is limited and that it may not be used to raise issues not previously

raised in initial brief), aff’d, 417 Md. 479, cert. denied, 565 U.S. __, 132 S. Ct. 93 (2011).

In any event, a claim of ineffective assistance of counsel is, ordinarily, more appropriately

addressed in a post-conviction proceeding, because that proceeding affords an opportunity

for an evidentiary hearing and a chance for defense counsel to explain what may have been

a tactical reason for his belated objection. Mosley v. State, 378 Md. 548, 558-62 (2003).

III.

Martin claims that the trial court erred in denying his exceptions to the State’s refusal

to provide a bill of particulars and that, as a result, he was forced to defend himself without

knowing whether the State was claiming that he was a principal in the first degree, an aider

and abettor, or an accessory before the fact. He further asserts that, because of this

uncertainty, he was unfairly surprised when, during the trial, the State purportedly changed

its theory of the case, from alleging that he accompanied the shooter to the victim’s house

to asserting that he was at McFadden’s house at the time of the shooting, and that it was there

that he prepared the homemade silencer used in that attack. He therefore maintains that he

was unfairly prejudiced by the denial of his request for a bill of particulars and, as a

consequence, denied due process of law. We find no merit to this claim.

21
Several months before the scheduled trial date and a year before Martin’s trial

ultimately took place, Martin filed a demand for a bill of particulars, “pursuant to Maryland

Rule 4-241,”28 as to all counts of the indictment. The demand directed the prosecution to:

1. State with particularity the exact time and place where the
alleged offense occurred.

2. State with particularity what facts the State will prove to
show the Defendant did commit the alleged offense.

28
Maryland Rule 4-241 provides:

(a) Demand. Within 15 days after the earlier of the appearance
of counsel or the first appearance of the defendant before the
circuit court pursuant to Rule 4-213(c), the defendant may file
a demand in circuit court for a bill of particulars. The demand
shall be in writing, unless otherwise ordered by the court, and
shall specify the particulars sought.

(b) Response to Demand. Within ten days after service of the
demand, the State shall file a bill of particulars that furnishes the
particulars sought or it shall state the reason for its refusal to
comply with the demand.

(c) Exceptions to Response. The defendant may file
exceptions to the sufficiency of the bill of particulars or to any
refusal or failure to comply with the demand. The exceptions
shall be filed within ten days after service of the response to the
demand or, if no response is filed, within ten days after the time
within which a response should have been filed. The circuit
court may rule on the exceptions without a hearing.

(d) Amendment. On motion of the State, the court may permit
a bill of particulars to be amended at any time subject to such
conditions as justice requires.

22
3. State with particularity the facts the State will prove to show
the alleged offense was committed.

4. State with particularity the manner and means with which the
Defendant did commit the alleged offense.

5. State with particularity if Defendant is charged with the
alleged offense as a principal in the first degree or as a
principal in the second degree.

6. State with particularity all facts the State intends to prove
that show Defendant acted as a principal in the first degree
or as a principal in the second degree.

(Emphasis added.)

Two weeks later, Martin moved to dismiss the indictment, alleging that it “fail[ed] to

sufficiently characterize the offenses in order to enable the Defendant to prepare a defense.”

Five months later, having not received a response to his demand for a bill of particulars,

Martin filed exceptions, insisting that, “[i]n view of the nature of the offenses charged in the

above-captioned case, it is essential to the preparation of the defense in this matter that the

State’s Attorney’s Office comply forthwith with the Demand for Particulars.” Two weeks

after that, the State filed an opposition to Martin’s demand for particulars, contending that

it had “given open file discovery” to Martin and that, as the discovery process had been

“transparent,” there was “no chance” that the indictment was so general that it failed to

disclose “sufficient information to afford” Martin “a fair and reasonable opportunity to

defend himself.” In fact, Martin’s demand for particulars was, asserted the State, nothing

more than “a surreptitious attempt” to force the State to disclose its “legal theories” and

23
thereby “box the State in at trial.” That being so, it urged the circuit court to deny Martin’s

request.

A hearing was subsequently held on, among other things, Martin’s motion to dismiss

the indictment and his exceptions to the State’s response to his demand for a bill of

particulars. At the conclusion of that hearing, the circuit court overruled Martin’s exceptions

and denied his motion to dismiss the indictment, concluding that Martin’s trial counsel had

“to defend against everything,” that is, against the possibility that Martin was the shooter, as

well as “the solicitor of the crime.”

“[B]ills of particulars are intended to guard against the taking of an accused by

surprise by limiting the scope of the proof,” Hadder v. State, 238 Md. 341, 351 (1965), and,

ultimately, ensure that an accused’s constitutional rights “to be informed of the accusation

against him and . . . to prepare for his defense” are protected. Seidman v. State, 230 Md. 305,

312 (1962). But a bill of particulars is meant “to secure facts, not legal theories.” Hadder,

238 Md. at 351 (quoting Rose v. United States, 149 F.2d 755, 758 (9th Cir. 1945)). Indeed,

an accused is “not entitled to make the prosecution select and state its theory of the case.”

Id.

During the pendency of this appeal, the Court of Appeals decided Dzikowski v. State,

436 Md. 430 (2013). In that case, the Court of Appeals considered whether a trial court

abused its discretion in overruling Dzikowski’s exceptions to the State’s refusal to provide

the information requested by his demand for particulars because the State believed that the

24
information requested by that demand had been previously given to him before trial. The

pertinent facts of that case, as summarized by the Court of Appeals, were as follows:

Dzikowski[] was driving a vehicle with five other passengers at
1:00 a.m. in Gaithersburg, Maryland on January 6, 2008, when
he came upon a man, later identified as Manuel
Ramirez-Gavarete, standing in the middle of the road, and, as a
result, had to swerve in order to avoid colliding with him. After
passing Mr. Ramirez-Gavarete, however, and upon the
suggestion of one of the passengers, [Dzikowski] returned to
the scene. Once there, when he and one of the passengers,
Joshua Jones, got out of the vehicle, Mr. Ramirez-Gavarete, who
appeared to be highly intoxicated, staggered towards them and
attempted to hug or lean on the petitioner. [Dzikowski] pushed
him away, nearly knocking him into a slowly passing vehicle.
Mr. Ramirez-Gavarete then approached Mr. Jones, who struck
him in the face, knocking him down onto the roadway.
[Dzikowski] and Mr. Jones then immediately drove away,
leaving Mr. Ramirez-Gavarete lying in the road. Shortly
thereafter, another vehicle ran over Mr. Ramirez-Gavarete,
killing him.

Id. at 434-35.

Dzikowski was charged in a three-count indictment, filed in the Circuit Court for

Montgomery County, with manslaughter, reckless endangerment, and conspiracy to commit

assault. Id. at 435. The reckless endangerment count merely stated, as provided in the

statutory short-form indictment, that Dzikowski, “on or about January 6, 2008, in

Montgomery County, Maryland, committed reckless endangerment, in violation of

Section 3-204 of the Criminal Law Article against the peace, government, and dignity of the

25
State.”29 Id. at 436. Invoking Maryland Rule 4-241, Dzikowski filed a demand for a bill of

particulars as to the charge of reckless endangerment. When the State responded, to each of

his enumerated requests, that the facts requested were “contained in discovery,” Dzikowski

filed exceptions to what he deemed an insufficient response. Id. at 437. Ultimately, the

29
Maryland Code (2002), Criminal Law Article, § 3-206(d), in effect at the time of
trial, provided:

(d) (1) To be found guilty of reckless endangerment under
§ 3-204 of this subtitle, a defendant must be charged specifically
with reckless endangerment.
(2) A charging document for reckless endangerment
under § 3-204 of this subtitle is sufficient if it substantially
states:
“(name of defendant) on (date) in (county) committed
reckless endangerment in violation of § 3-204 of the Criminal
Law Article against the peace, government, and dignity of the
State.”.
(3) If more than one individual is endangered by the
conduct of the defendant, a separate charge may be brought for
each individual endangered.
(4) A charging document containing a charge of reckless
endangerment under § 3-204 of this subtitle may:
(i) include a count for each individual endangered
by the conduct of the defendant; or
(ii) contain a single count based on the conduct of
the defendant, regardless of the number of individuals
endangered by the conduct of the defendant.
(5) If the general form of charging document described
in paragraph (2) of this subsection is used to charge reckless
endangerment under § 3-204 of this subtitle in a case in the
circuit court, the defendant, on timely demand, is entitled to a
bill of particulars.

The 2012 Replacement Volume contains an identical provision.

26
circuit court overruled those exceptions, holding that the State had complied with Rule

4-241(b).

The Court of Appeals noted that, in its opening statement at Dzikowski’s trial,30 the

State stressed that Dzikowski (with co-defendant Jones) had committed “needless senseless

violence” and had left Ramirez-Gavarete “in the middle of the road, where he was then hit

and killed by another car.” Id. at 439. The State further alleged that both Dzikowski and

Jones “pushed” Ramirez-Gavarete but, in the words of the Court of Appeals, “did not

reference or even mention that it was in the direction of a passing vehicle.” Id. Instead, the

State proffered that, after both Dzikowski and Jones had taken turns “push[ing]”

Ramirez-Gavarete, Jones “punched” him, “knocking him down” and apparently “out.” The

two men then left him in the middle of a “very dark” and “very dangerous” road, where he

was subsequently run over and killed by a passing vehicle. Id. at 439-40.

At the conclusion of the State’s case-in-chief, Dzikowski moved for judgment of

acquittal as to all counts. The trial court granted his motion as to the counts alleging

manslaughter and conspiracy but denied it as to the count of reckless endangerment, which,

at that point, was the only remaining count. As to that charge, the trial court found that,

based upon testimony of the driver of the “slowly passing vehicle,” which had nearly struck

Ramirez-Gavarete when Dzikowski shoved him in the direction of that vehicle, that

30
Dzikowski and Jones were tried jointly. Dzikowski v. State, 436 Md. 430, 439
(2013) (quoting the State referring to Jones as the “co-defendant”).

27
Dzikowski had “timed” his shove of Ramirez-Gavarete “as though it were planned that . . .

when he pushed him, he would collide with this car.” Id. at 440. Although this on-coming

vehicle was traveling “at a crawl,” acknowledged the trial court, “if you lose your footing,

and you fall underneath the wheels of a car going five miles an hour,” you will still be, the

court observed, “a dead person.” Id. The trial court therefore concluded that there was

“sufficient evidence from which a jury could conclude that there was reckless

endangerment.” Id.

“Armed with that ruling, the State thereafter proceeded on a new theory and factual

basis,” observed the Court of Appeals. Id. That is to say, the State departed from its reliance

upon Jones punching the victim, knocking him down, and leaving him in the road, to prove

reckless endangerment, in favor of “rel[ying] on the fact that” Dzikowski pushed

Ramirez-Gavarete “in the direction of a slowly passing car, thus recklessly endangering

him.” Id. After he was convicted of reckless endangerment, Dzikowski appealed, claiming

that he had been unfairly surprised and prejudiced by the State’s mid-trial shift in strategy.

Id. at 441.

The Court of Appeals ultimately reversed and remanded for a new trial. Id. at 441,

457. In so doing, the Court of Appeals noted that, because Dzikowski had been charged,

under a statutory short-form indictment, with reckless endangerment, he was entitled to have

the State respond to his demand for a bill of particulars, under Criminal Law Article,

§ 3-206(d)(5), which provides that, under that circumstance, “the defendant, on timely

28
demand, is entitled to a bill of particulars.” Dzikowski, 436 Md. at 446. This statutory

entitlement, the Court of Appeals observed, is intended “to provide ‘such a description of the

particular act to have been committed as to inform [the accused] of the specific conduct with

which he is charged.’” Id. at 448 (quoting Ayre v. State, 291 Md. 155, 163 (1981)).

Moreover, it is constitutionally required, declared the Court, so as to “apprise the defendant

of the crime with which he is accused, as well as of the particular conduct to which that

accusation relates and refers.” Id.

Ordinarily, the charging document itself must provide the accused with the

“constitutionally required” notice of “what he is called upon to defend,” Ayre, 291 Md. at

163 (citing Article 21 of the Maryland Declaration of Rights), but the statutory short-form

indictment, at least as to certain offenses, is typically lacking in such information. In those

instances, the accused has a statutory right to particulars, which furnishes that information.

Dzikowski, 436 Md. at 448, 453-54. Indeed, as the Dzikowski Court observed, the charging

document in that case merely stated that Dzikowski, “on or about January 6, 2008, in

Montgomery County, Maryland, did commit reckless endangerment, in violation of

Section 3-204 of the Criminal Law Article,” providing no information as to the underlying

facts. Id. at 448.

“Generally,” whether to grant or refuse a demand for a bill of particulars is within the

trial court’s discretion, as is the “the determination of whether the particulars provided were

legally sufficient.” Id. at 446-47. In Dzikowski, the trial court abused its discretion in

29
overruling Dzikowski’s exceptions, held the Court of Appeals, as the State’s response to

Dzikowski’s demand for a bill of particulars merely directed him to discovery materials and

therefore violated Criminal Law § 3-206(d)(5), which required that he be informed of “the

factual basis underlying the reckless endangerment charge.” Dzikowski, 436 Md. at 449, 452.

The Court of Appeals further held that the “trial court’s legal error,”31 id. at 454, was not

harmless beyond a reasonable doubt, because it was “possible” that Dzikowski was

“prejudiced” by the State being permitted “to proceed upon a factual basis, on which it did

not rely, or even acknowledge, in the indictment, in the bill of particulars it filed and

throughout the first half of the trial.” Id. at 456. Then, before reversing Dzikowski’s

conviction, the Court rejected any suggestion that Dzikowski’s demand for a bill of

particulars sought “the State’s legal theory of the case.” Id. at 452.

Charged with first- and second-degree assault and reckless endangerment, in a

short-form indictment, Martin had, because of those charges,32 the same statutory right to a

bill of particulars granted Dzikowski by Criminal Law § 3-206(d). Martin does not,

however, rely upon Criminal Law § 3-206(b) or (d) and, in fact, makes no mention of those

statutory subsections in either his initial or reply brief. Instead, his dispute with the State’s

response to his demand for a bill of particulars focuses specifically and only on the State’s

31
Because the trial court, in Dzikowski, based its exercise of discretion upon a legal
error, it “necessarily” abused its discretion. Bass v. State, 206 Md. App. 1, 11 (2012).
32
See CL § 3-206(b) (providing that an accused, charged with either first- or
second-degree assault by a short-form indictment or information, “on timely demand, is
entitled to a bill of particulars”).

30
theory of his criminal agency with respect to the attempted murder charges. We further

presume that that is because the assault and reckless endangerment charges were nol prossed

by the State, or, as in the case of first-degree assault, subsumed into the greater offense,

attempted first-degree murder. Moreover, the conspiracy charge was also nol prossed and

thus, despite being the focal point of much of the argument below, is no longer a part of this

case. Furthermore, Martin was acquitted of the solicitation charge, extinguishing its

relevance and removing it from further consideration.

The case at bar is distinguishable from Dzikowski, though the two cases share one

similarity, which we believe to be of no consequence here, and that is, in both Dzikowski and

the instant case, the State’s response to the demand for a bill of particulars was, in essence,

that no response was necessary because it followed a policy of “open file discovery.” Id. at

438. What renders the two cases disanalogous for the purposes of this decision is that, while

Dzikowski was charged with reckless endangerment, by short-form indictment, and was

therefore entitled to a bill of particulars, Martin was charged with attempted murder, and

though it was also by short-form indictment, the crime of attempted murder is not an offense

which carries with it this entitlement. See Spector v. State, 289 Md. 407, 423 (1981)

(observing that, while an accused has a right to a charging document that meets constitutional

requirements, he “is not entitled as of right to particulars”).33

33
Martin does not contend in this Court that the indictment was defective.

31
Although Martin couches his argument in terms of what he calls “different factual

scenario[s]” presented by the State, his complaint is actually with the State’s refusal to elect,

prior to trial, a particular legal theory on which to proceed and then to inform him of the

theory it chose. That is clear from the following language in Martin’s demand for a bill of

particulars:

5. State with particularity if Defendant is charged with the
alleged offense as a principal in the first degree or as a principal
in the second degree.

6. State with particularity all facts the State intends to prove that
show Defendant acted as a principal in the first degree or as a
principal in the second degree.

His demand thereby directs the State to declare what theory of criminal culpability it

has chosen to proceed upon. An accused, however, is not entitled to know the State’s theory

of the case prior to trial and, under Maryland Rule 4-241, has no right to compel the State to

disclose it. Hadder, 238 Md. at 351.

Martin further complains that, during the trial, the State changed its theory of the

crime, thereby unfairly prejudicing his efforts to defend himself. He asserts, without

elaboration, that the State, during its opening statement, “presented argument that Jerold

Burks was definitely the shooter, that Appellant had solicited his assistance, and that

Appellant was guilty as a principal in the second degree by aiding and abetting Burks at the

scene.” That assertion unfortunately distorts what the State actually said in its opening

statement. In fact, it is fair to say that the State made no such assertions about Burks, who,

32
by that time, had already been acquitted of all charges stemming from his alleged role in the

crime.

We further reject Martin’s contention that, during trial, the State’s theory “morphed

into one that made [him] only an accessory before the fact,” that is, as the Court of Appeals

has put it, “one who is guilty of felony by reason of having aided, counseled, commanded or

encouraged the commission thereof, without having been present either actually or

constructively at the moment of perpetration.” State v. Ward, 284 Md. 189, 197 (1978),

overruled on other grounds, Lewis v. State, 285 Md. 705, 714-16 (1979). The State’s

opening statement alleged that Martin, Frank Bradley, and Jerry Burks had constructed the

home-made silencer at Maggie McFadden’s house, which clearly conveyed the State’s belief

that Martin was an accessory before the fact, a belief substantiated at trial by DNA evidence

presented by the State connecting Martin to the homemade silencer.

The instant case is quite unlike Dzikowski. There, the circuit court erroneously

permitted the State “to proceed upon a factual basis, on which it did not rely, or even

acknowledge, in the indictment, in the bill of particulars it filed and throughout the first half

of the trial,” and that error, as the Court of Appeals pointed out, may have affected

Dzikowski’s trial preparation or strategy. Id. at 456-57. In contrast, here, there was no

possibility that Martin was either unfairly surprised or prejudiced at trial because he knew,

from the start, that the State would attempt to prove his participation in the steps taken to

consummate the attempted murder of the victim, as an accessory before the fact.

33
IV.

Martin contends that the evidence was insufficient to sustain his conviction of

attempted murder in the first degree. Specifically, he submits that “the most damning pieces

of evidence, those relating to [his] activities in Maggie McFadden’s house on the day of [the]

shooting, were provided by” Michael Bradley, “a witness who originally told police a

completely different story from the one he related at trial, was granted immunity from the

present case and leniency in another in exchange for his testimony, and previously had been

convicted of obstruction of justice.”

In reviewing a claim of insufficiency in a criminal case, we determine “whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.” Jackson

v. Virginia, 443 U.S. 307, 319 (1979). Thus, we do “not re-weigh the credibility of witnesses

or attempt to resolve any conflicts in the evidence.” Smith v. State, 415 Md. 174, 185 (2010).

Applying this rule of appellate review, we conclude that Martin’s argument as to “the

most damning pieces of evidence” is a red herring. The factors he raises in support of it,

such as the alleged inconsistencies in the stories told by the State’s witness and whether that

witness received favorable treatment in exchange for his testimony, bear only on witness

credibility, not the sufficiency of the evidence, and therefore lie beyond the scope of our

review.

34
Martin further asserts that, although “it might be reasonable for a finder of fact to

conclude that these facts [as summarized] could be consistent with [his] guilt, it simply is not

the case that they are inconsistent with every single reasonable theory of his innocence.” He

then asks us to apply the standard articulated in Wilson v. State, 319 Md. 530, 537 (1990),

where the Court of Appeals stated that “a conviction upon circumstantial evidence alone is

not to be sustained unless the circumstances, taken together, are inconsistent with any

reasonable hypothesis of innocence.” See also Jones v. State, 395 Md. 97, 120 (2006); Moye

v. State, 369 Md. 2, 13 (2002); Hebron v. State, 331 Md. 219, 224 (1993); West v. State, 312

Md. 197, 211-12 (1988).

Martin’s reliance on Wilson and its progeny is misplaced. First of all, “Maryland has

long held that there is no difference between direct and circumstantial evidence.” Hebron,

331 Md. at 226. It is, in fact, now an axiom of law that “[n]o greater degree of certainty is

required when the evidence is circumstantial than when it is direct, for in either case the trier

of fact must be convinced beyond a reasonable doubt of the guilt of the accused.” Id. at

226-27 (quoting Gilmore v. State, 263 Md. 268, 292 (1971), vacated in part on other

grounds, 408 U.S. 940 (1972)).

And, contrary to what Martin claims, circumstantial evidence “need not be such that

no possible theory other than guilt can stand.” Id. at 227 (quoting Gilmore, 263 Md. at 293).

That is to say, “[i]t is not necessary that the circumstantial evidence exclude every possibility

of the defendant’s innocence, or produce an absolute certainty in the minds of the jurors.”

35
Id. (quoting Gilmore, 263 Md. at 293). Indeed, the Court of Appeals recently noted that,

notwithstanding the “reasonable hypothesis of innocence” language in Wilson and

succeeding cases, “it is well established” that the standard that Martin “champions” is not

“the focus of the standard to be applied when reviewing the sufficiency of the evidence in

criminal cases.” Smith, 415 Md. at 183. Appellate courts, it warned, should not

“second-guess the jury’s determination where there are competing rational inferences

available.” Id. And, finally, this Court recently stated “that the better test is ‘whether the

evidence, circumstantial or otherwise, and the inferences that can reasonably be drawn from

the evidence, would be sufficient to convince a rational trier of fact beyond a reasonable

doubt, of the guilt of the accused.’” Clark v. State, 188 Md. App. 110, 116 (2009) (quoting

Hagez v. State, 110 Md. App. 194, 204 (1996)).

Applying this “better test,” a test consistent with the approach approved by the Court

of Appeals in Smith, 415 Md. at 183-86, to the instant case, we hold that there was sufficient,

indeed ample, evidence of Martin’s guilt. To begin with, there was evidence that Martin had

a motive to kill. The victim had told Martin that she was pregnant with his child and had

refused his request that she undergo an abortion. Were she to have his child, Martin would

have had to contribute, much to his chagrin, to the support of that child, a point the victim

impressed upon an enraged Martin. Equally discomforting for Martin, the birth of the child

in question would have inevitably led to the discovery of his infidelity by his wife and

significant others.

36
Furthermore, the forensic evidence linked Martin to the homemade silencer found at

the crime scene. An expert for the State testified that the hair found on the silencer most

likely came from someone in the same direct maternal line as Martin and that only 0.06 per

cent of the population in North America would be expected to have similar DNA. And, as

for the saliva found on the home-made silencer, the State introduced expert testimony that

the DNA test results excluded “approximately 94 percent of the Caucasian population” of,

presumably, North America, as well as “approximately 96 percent of the African-American

population” of, we assume, the same geographical area, from consideration, but not Martin.34

Moreover, the testimony of Sheri Carter, one of his erstwhile girlfriends, if believed

by the jury, established that: (1) shortly before the shooting, Martin used a computer to

conduct internet research on how to assemble a homemade silencer; (2) on that same

occasion, Martin took a pair of plastic surgical gloves from her home; (3) approximately one

week after the shooting and shortly after Martin had been questioned by police, Martin took

the computer from her apartment and “got rid of” it; and (4) during the two-month period

immediately preceding the shooting, Martin was observed by Ms. Carter to be carrying a

“small, silver, [black-handled], semi-automatic” handgun. Consistent with Carter’s

34
Although that expert, Sarah Chenoweth, did not testify as to whether the populations
she considered were from North America, we infer that she used that database in her analysis,
as that was the reference population used by the other expert, Dr. Terry Melton, in analyzing
the mitochondrial DNA evidence. This inference is consistent with the standard of review
we apply in addressing a claim of evidentiary sufficiency. See Jackson v. Virginia, 443 U.S.
307, 319 (1979) (requiring that, in determining whether evidence was sufficient, we “view[]
the evidence in the light most favorable to the prosecution”).

37
testimony, Michael Bradley testified that Martin owned a handgun, a fact confirmed by

records from the United States Bureau of Alcohol, Tobacco, Firearms, and Explosives, which

were introduced by the State. In fact, those records showed that, in 2003, Martin had

purchased two .380 caliber handguns, which was the same caliber as the weapon used to

shoot the victim.

Martin also had the opportunity to commit the crime, as he had been able to establish,

through text messages, that the victim was at home the day of the crime. The testimony of

Michael Bradley, moreover, implicated him in the preparation of the silencer and the

planning of the shooting. Finally, the jury could have reasonably inferred, based on Michael

Bradley’s testimony that Martin and Burks left Maggie McFadden’s home the afternoon of

the shooting and returned several hours later, that Martin transported Burks to the crime

scene.

In sum, a reasonable fact finder could have found, beyond a reasonable doubt, based

on the evidence presented by the State, that Martin planned and participated in the shooting.

V.

Martin contends that the circuit court erred both in giving the State’s proposed jury

instruction on accessory before the fact and in refusing to give his proposed instruction on

aiding and abetting. He further asserts that “the State originally had proceeded on an aider

and abettor argument” but, later, during trial, switched gears and advanced a different theory

of criminality, namely, that Martin was actually an accessory before the fact, and that the trial

38
court’s actions, in giving the State’s instruction while refusing his, “reward[ed] the State for

fostering uncertainty through inconsistency and unpreparedness.”

As to his proposed aiding-and-abetting instruction, Martin insists that, at the

beginning of trial, the State “opted to introduce” that theory and that it should have been

forced “to cope with the consequences of doing so.” He maintains, moreover, that his

proposed instruction was a correct statement of the law, was applicable to the facts of the

case, and was not fairly covered by any other instruction given and that the trial court’s

refusal to give that instruction therefore violated Maryland Rule 4-325.

As interpreted by the Court of Appeals, Maryland Rule 4-325 provides that a circuit

court may not refuse to give “a requested jury instruction” (1) when that instruction “is a

correct statement of the law”; (2) when it is “applicable to the facts of the case”; and

(3) when “the content of the instruction was not fairly covered elsewhere in instructions

actually given.” Cost v. State, 417 Md. 360, 368-69 (2010) (citation and quotation omitted).

To prove that Martin was an aider and abettor, the State was required to prove, among

other things, that Martin “was present when the crime was committed.” Maryland Criminal

Pattern Jury Instructions 6:01 (“Aiding and Abetting”). And, as the State points out, Martin,

himself, acknowledges that there was insufficient evidence that he was present at the scene

of the shooting.35 Thus, his proposed aiding-and-abetting jury instruction was not

35
In his brief, Martin states: “Simply because the State decided to change theories
upon realizing there was insufficient evidence to convict . . . under [an aiding and abetting
(continued...)

39
“applicable to the facts of the case,” Cost, 417 Md. at 368, and the circuit court did not err

in refusing to give that instruction. Id. at 369.

Nor did the circuit court err in giving the State’s requested “accessory-before-the-fact”

instruction. As previously noted in Part IV of this opinion, there was ample evidence that

Martin participated in the assemblage of the homemade silencer found at the scene of the

shooting. Hence, the State’s accessory-before-the-fact instruction was, to be sure,

“applicable to the facts of the case.” Id. at 368. Since Martin does not contend that this

instruction misstated the law, or that another instruction “fairly covered” the content of the

accessory-before-the-fact instruction, id. at 368-69, we have no grounds upon which to find

that the circuit court erred in giving the State’s requested instruction.

VI.

Martin claims that the circuit court erred in accepting inconsistent verdicts. He refers

specifically to two verdicts: one that convicted him of attempted first-degree murder, the

other that acquitted him of solicitation to commit murder. The State responds that, because

Martin failed to raise this issue when the verdicts were announced, the issue is unpreserved

for our review. It adds that, even if this issue had been preserved, the verdicts were, at most,

factually, but not legally, inconsistent and that, therefore, under McNeal v. State, 200 Md.

35
(...continued)
theory] is not reason enough for the court to refuse an[] otherwise proper jury instruction.”

40
App. 510, cert. granted, 424 Md. 55 (2011),36 the circuit court did not err in accepting the

verdicts.

After the jury foreperson announced the verdicts, Martin’s counsel requested that the

jury be polled. At the conclusion of the poll, the verdict was hearkened, and the jury was

excused. The court then ordered a pre-sentence investigation (“PSI”) report and proceeded

to discuss, with counsel, the scheduling of the sentencing hearing. After confirming that

defense counsel would explain to Martin what a “PSI” was and how the sentencing would

proceed, the court informed Martin of his right to file a motion for a new trial and the court

adjourned. At no time did Martin object to the allegedly inconsistent verdicts.

In Tate v. State, 182 Md. App. 114, cert. denied, 406 Md. 747 (2008), we held that,

to preserve for appeal a claim that a jury has rendered inconsistent verdicts, “a defendant

must note his objection” to the inconsistent verdicts “while the trial court has an opportunity

to remedy the error,” that is, before the verdicts are “final and the jury is discharged. Failure

to do so constitutes waiver.” Id. at 136 (quoting Price v. State, 405 Md. 10, 42 (2008)

(Harrell, J., concurring)). It is undisputed that Martin failed to object below to what he now

alleges were inconsistent verdicts. In fact, he waited until this appeal to raise this issue. We

therefore hold that the issue is not properly before us.

36
As we shall hereafter explain, during the pendency of this appeal, the Court of
Appeals affirmed the holding and reasoning of this Court in that case. McNeal v. State, 426
Md. 455 (2012), aff’g 200 Md. App. 510 (2011).

41
In any event, if the issue had been preserved for our review, we would find that it has

no merit. The Court of Appeals held, during the pendency of this appeal, that, while legally

inconsistent jury verdicts in criminal cases are “prohibited,” jury verdicts “which are illogical

or factually inconsistent are permitted.” McNeal v. State, 426 Md. 455, 458-59 (2012), aff’g

200 Md. App. 510 (2011). It defined “legally inconsistent verdicts” as those verdicts “where

a defendant is acquitted of a ‘lesser included’ crime embraced within a conviction for a

greater offense.” Id. at 458 n.1. A “lesser included crime” is a “required element of the

greater” crime. Tate, 182 Md. App. at 131.

Martin was convicted of attempted first-degree murder. The “elements of attempted

murder in the first degree are the intent to commit murder in the first degree and some overt

act towards the crime’s commission.” State v. Holmes, 310 Md. 260, 271-72 (1987). And

“the intent required for first[-]degree murder is that it shall have been wilful, deliberate, and

premeditated.”37 Id. at 272. Consequently, to prove that Martin was guilty of attempted

murder in the first degree, the State had to prove that he “had the wilful, deliberate, and

premeditated intent to kill” the victim, and that he committed “some overt act towards that

end.” Id.

On the other hand, the crime of which Martin was acquitted, solicitation to commit

murder, required the State to prove that he counseled, enticed, or induced another to commit

37
The only exception to this rule is where the defendant is charged with first-degree
felony murder. State v. Holmes, 310 Md. 260, 272 n.5 (1987).

42
the crime of murder. Denicolis v. State, 378 Md. 646, 659 (2003). “The person solicited

need not commit, attempt to commit, or even intend to commit the act for the solicitation to

be complete. The solicitation is complete once the incitement is made, even if the person

solicited does not respond at all.” Monoker v. State, 321 Md. 214, 220 (1990).

Solicitation to commit murder is, to be sure, not a lesser included offense of attempted

first-degree murder. While solicitation requires proof that the accused counseled, enticed,

or induced another to commit murder, attempted first-degree murder does not.

Martin was acquitted of solicitation, presumably because the State had failed to prove,

beyond a reasonable doubt, that he had counseled, enticed, or induced anyone else to murder

or attempt to murder the victim. But, that is all that his acquittal suggested. There is no legal

inconsistency between Martin’s conviction of attempted first-degree murder and his acquittal

of solicitation. Indeed, there may not be even a factual inconsistency between the verdicts,

because the jury could have found that whoever assisted Martin in the planning and logistics

of the murder attempt volunteered his assistance, without any counseling, enticement, or

inducement by Martin.

VII.

Martin contends that the circuit court erred in sentencing him. The court, he claims,

“improperly” considered a letter “allegedly” written by him and then, by imposing a life

sentence instead of a sentence within the guidelines applicable to him, which were five to ten

years, “effectively sentenced [him] for a crime of which he had been acquitted[.]”

43
To begin with, the State maintains that Martin has failed to preserve the “letter” issue

for our consideration. “At no time during sentencing,” the State avers, did Martin “voice any

objection to consideration of the letter he now challenges.” Rather, according to the State,

Martin “challenged the admission of the letter on authentication grounds” and “objected to

the State’s request that the sentencing hearing be postponed so it could authenticate the

letter” but “did not object to the letter being considered by the court.” Invoking Reiger v.

State, 170 Md. App. 693, 700 (2006), a case which held that, in the absence of a

contemporaneous objection, a defendant may not claim, on appeal, that a court considered

improper evidence or impermissible factors when imposing sentence, the State insists that

Martin “has given up any right to argue on appeal that the sentencing judge was motivated

by impermissible considerations.”

At the sentencing hearing, Thomas Laue, an administrator at the Jennifer Road

Detention Center in Anne Arundel County, where Martin was incarcerated while awaiting

imposition of sentence, testified that, in performing his duty to screen mail to and from

inmates, he noticed an unusual piece of mail that Martin was attempting to send. The letter,

which attracted his attention, “didn’t have a return address,” although “the outside [envelope]

had the name Lil D written on it.” 38

38
It is clear from the transcript that the letter was introduced into evidence at the
sentencing hearing and was considered by the court. The suspicious letter and the envelope
containing it, although referred to in the list of State Exhibits, are not part of the record
before us.

44
The letter appeared to instruct an unknown recipient to enlist Jerry Burks in an effort

to falsely implicate Maggie McFadden in the shooting at issue and have Burks place

telephone calls to the prosecutor to achieve that end. For that purpose, it contained

instructions on how to place telephone calls without the risk of their being traced and

included an offer of “a paid lawyer” to Burks should he agree to cooperate.39 The letter

further proposed, according to the State, that an e-mail be sent (by whom, the record does not

say) “to law enforcement [which] would also shift the blame from Martin to Maggie

[McFadden].” The letter then concluded with a veiled instruction to kill Burks once he had

completed the task of planting the false accusation.40

The State also introduced, at sentencing, testimony from Diane Lawder, a forensic

scientist with the Maryland State Police and an expert in the field of forensic document

examination. Having compared the handwriting in the letter and on the envelope with that

from a sample of Martin’s handwriting, she opined that it was “virtually certain” that the

handwriting in the letter belonged to Martin, whereas the handwriting on the envelope did

not. Over objection, the State introduced the letter and envelope into evidence.

39
At the time the letter was intercepted, on June 16, 2010, Burks had already been
acquitted of all charges based upon his alleged role in the attempted murder.
40
The State read, in open court, the following quote from the letter:

“Take [Burks] down the road somewhere and do what you do,
make sure there is no coming back. Be safe, and if you have to
do it different okay, but make sure the call and (indiscernible -
10:29:00) are in place and e-mail makes it all the best. Just tell
him a friend is trying to help him.”

45
At the conclusion of the sentencing hearing, the court imposed the maximum

allowable sentence, life imprisonment. The court expressly noted that it was imposing a

sentence greater than the range of sentence recommended by the sentencing guidelines and

then articulated specific reasons for doing so, namely: Martin’s major role in the offense,

the excessive level of harm inflicted by his crime, his exploitation of a position of trust, and

the “vicious or heinous nature of [his] conduct.” It did not directly or indirectly suggest that

the letter, in any way, influenced the sentence it imposed.

Turning now to Martin’s claim of sentencing error, we begin by addressing the State’s

non-preservation argument. Although the State cites Reiger v. State, supra, 170 Md. App.

693, in support of its argument, we find that another case is more directly on point—that case

is Brecker v. State, 304 Md. 36 (1985), a case that is addressed briefly in Reiger. 170 Md.

App at 699.

Brecker was convicted of, among other things, storehouse breaking and malicious

destruction of property and was ordered to pay restitution of $1,036.76. Brecker, 304 Md.

at 37-38. “At no time did the trial court make any inquiry into [Brecker’s] ability to pay,”

and that failure to so inquire was the basis of Brecker’s appeal. Id. at 39. Because Brecker

objected, at his sentencing hearing, on the ground that the amount of restitution had not been

proven, but he did not then object on the ground that the court had failed to inquire into his

ability to pay restitution, the Court of Appeals deemed his appellate contention waived. Id.

at 40-42.

46
In the case at bar, the State makes a similar argument, that the claim raised on appeal

is different from the claim raised at Martin’s sentencing hearing, and, therefore, his appellate

claim should be deemed waived. We agree. Martin challenged, during his sentencing

hearing, the authenticity of the letter at issue, but at no time did he contend below that, upon

proof of the letter’s authenticity, it was nonetheless improper for the circuit court to consider

its substance. In that respect, the instant case is analogous to Brecker, and, applying the

holding in that case, we hold that Martin’s improper consideration claim was waived.

Even if Martin had preserved this issue for our review, we would find that it has no

merit. “[A] sentencing judge in a criminal proceeding is ‘vested with virtually boundless

discretion.’” State v. Dopkowski, 325 Md. 671, 679 (1992) (quoting Logan v. State, 289 Md.

460, 480 (1981)). Maryland appellate courts recognize only three grounds for challenging

a sentence imposed by the circuit court. Those grounds arise when: (1) the sentence violates

the Eighth Amendment prohibition against cruel and unusual punishment, or its Maryland

cognates41 ; (2) the sentence exceeds statutory limits; or (3) the sentencing court was

41
Article 16 of the Maryland Declaration of Rights provides:

That sanguinary Laws ought to be avoided as far as it is
consistent with the safety of the State; and no Law to inflict
cruel and unusual pains and penalties ought to be made in any
case, or at any time, hereafter.

Article 25 of the Maryland Declaration of Rights provides:

That excessive bail ought not to be required, nor excessive fines
(continued...)

47
motivated by ill-will, prejudice, or other impermissible considerations. Id. at 680. Only the

third ground is alleged here.

“The strict rules of evidence do not apply at a sentencing proceeding.” Id.; see

Williams v. New York, 337 U.S. 241, 246-47 (1949). “In order to impose what is necessary

to accomplish [the objectives of sentencing], [the sentencing judge] has a very broad latitude,

confined only by unwarranted and impermissible information, to consider whatever he has

learned about the defendant and the crime.” Johnson v. State, 274 Md. 536, 540 (1975). The

sentencing judge may consider, among other things, “the evidence presented at the trial, the

demeanor and veracity of the defendant gleaned from his various court appearances, as well

as the data acquired from such other sources as the presentence investigation or any personal

knowledge the judge may have gained from living in the same community as the offender.”

Id. Moreover, “a sentencing judge may properly consider uncharged or untried offenses.”

Smith v. State, 308 Md. 162, 172 (1986).

The State introduced, at Martin’s sentencing hearing, a letter showing that, while

awaiting sentencing, Martin solicited an unknown person to persuade Burks to leave

telephone messages falsely implicating McFadden in the shooting and, upon completion of

that illicit task, to kill Burks. Given the “very broad latitude” the sentencing judge possesses,

41
(...continued)
imposed, nor cruel or unusual punishment inflicted, by the
Courts of Law.

48
she acted within her discretion in considering the letter, even if it constituted evidence of an

uncharged offense. Smith, 308 Md. at 172.

We also reject Martin’s contention that the sentencing judge improperly sentenced

him, in effect, for a crime of which he had been acquitted, as evidenced by the fact that his

sentence was substantially greater than the sentencing guidelines recommended. In Henry

v. State, 273 Md. 131, 140-51 (1974), the defendant made a similar type of claim (though,

at that time, the Maryland Sentencing Guidelines did not exist).42 The Court of Appeals held,

however, that a sentencing judge may consider the defendant’s involvement in crimes of

which he was acquitted by a jury, so long as the sentence imposed does not exceed the

statutory maximum for the crimes of which he was convicted. See also Owens v. State, 161

Md. App. 91, 101 (2005) (“Unfortunately, at times, an accused is improperly acquitted of a

crime.”) (quoting Jeter v. State, 9 Md. App. 575, 582 (1970), aff’d, 261 Md. 221 (1971)).

Martin was sentenced to the maximum penalty, life imprisonment, for the crime of

which he was convicted: attempted murder in the first degree. See Md. Code (2002),

§ 2-205 of the Criminal Law Article. Because the sentence was authorized by statute and

because Martin has failed to show that the sentencing judge was motivated by ill-will,

42
The Maryland State Commission on Criminal Sentencing Policy, the body that
promulgates the Maryland Sentencing Guidelines, was established by chapter 648 of the
1999 Laws of Maryland. See 1999 Md. Laws, ch. 648, at 3564, 3568-74.

49
prejudice, or other impermissible considerations, there are no grounds for vacating that

sentence.

JUDGMENT OF THE CIRCUIT COURT
FOR ANNE ARUNDEL COUNTY
AFFIRMED. COSTS TO BE PAID BY
APPELLANT.

50