Ford v. State

David Leander Ford v. State of Maryland, No. 2193, September Term, 2016. Opinion filed
on December __, 2017, by Berger, J.

HEADNOTES

TRIAL PROCEDURE - CHARACTER EVIDENCE - VICTIM’S TRAIT OF
PEACEFULNESS

In a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of
peacefulness to rebut evidence that the victim was the first aggressor.

TRIAL PROCEDURE - CHARACTER EVIDENCE - VICTIM’S TRAIT OF
PEACEFULNESS

Trial court did not abuse its discretion when it allowed the State to offer testimony of the
victim’s trait of peacefulness before any evidence was admitted to show that the victim
was the first aggressor, where the defense clearly stated in its opening statement that the
victim was the first aggressor and suggested that it would introduce evidence on this point.

CRIMINAL PROCEDURE - CONSCIOUSNESS OF GUILT EVIDENCE

Consciousness of guilt evidence is admissible because the particular behavior provides
clues to the person’s state of mind, which is relevant because the commission of a crime
can be expected to leave some mental traces on the criminal.

CRIMINAL PROCEDURE - CONSCIOUSNESS OF GUILT EVIDENCE

Evidence of post-crime conduct must satisfy four inferences to be admissible to show
consciousness of guilt: (1) from the defendant’s conduct, a desire to evade prosecution or
conceal evidence; (2) from a desire to evade prosecution or conceal evidence,
consciousness of guilt; (3) from consciousness of guilt, consciousness of guilt with respect
to the charged offenses; and (4) from consciousness of guilt with respect to the charged
offenses, actual guilt.

CRIMINAL PROCEDURE - CONSCIOUSNESS OF GUILT EVIDENCE

Testimony that the defendant had responded angrily when asked to leave the house where
he had been hiding from the police was admissible to show defendant’s consciousness of
guilt.
Circuit Court for Anne Arundel County
Case No. C-02-CR-15-33

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 2193

September Term, 2016

______________________________________

DAVID LEANDER FORD

v.

STATE OF MARYLAND

______________________________________

Graeff,
Berger,
Krauser, Peter B.
(Senior Judge, Specially Assigned),

JJ.
______________________________________

Opinion by Berger, J.
______________________________________

Filed: December 20, 2017
Following a jury trial in the Circuit Court for Anne Arundel County, appellant David

Leander Ford (“Ford”) was convicted of second degree murder and was sentenced to

twenty-five years in prison with all but twenty years suspended. The circuit court further

ordered that Ford be placed on probation for five years following his release.

On appeal, Ford raises four questions for our review, which we have rephrased as

follows:

1. Whether the circuit court erred in denying Ford’s motion to
suppress his statements to police.

2. Whether the circuit court abused its discretion in allowing
the State’s witnesses to testify regarding the victim’s
character for peacefulness.

3. Whether the circuit court erred or abused its discretion in
allowing a State’s witness to testify regarding Ford’s
reaction to being told that he had to leave her house.

4. Whether the circuit court abused its discretion in limiting
Ford’s cross-examination of a State’s witness.

For the reasons stated herein, we shall affirm.

FACTS AND PROCEEDINGS

We set forth the facts in the light most favorable to the prevailing party below. On

the evening of July 8, 2015, Mohamed Eltahir (“Eltahir”) was sitting on a park bench with

Everett Kane (“Kane”). Ford arrived holding some grocery bags, which he put down at

the end of the walkway before sitting on the bench with Eltahir and Kane. Eltahir and

Kane were drinking alcohol, but Kane testified that Eltahir did not appear to be drunk.

Barbara McQueen (“McQueen”) and her friend, Kathy, were sitting on another bench.
Two women walked by the bench where Ford was sitting, and Ford made a lewd

comment about Eltahir’s sister. An argument ensued and quickly escalated. Ford hit

Eltahir first, and Eltahir struck back. At some point during the altercation, Ford drew a

knife and stabbed Eltahir in the chest. Ford asked Kane to grab his bags, and the two of

them fled the scene. Although Ford had a cut on his arm, nobody had seen Eltahir use a

knife, and there was no evidence that Eltahir was in possession of a knife. Eltahir died

from the wound in his chest inflicted by Ford.

Thereafter, Ford went to the house of Sheila Brown (“Brown”), his former

girlfriend, to avoid the police. Brown let him stay the night, but the next morning she told

him to leave. Ford cursed her and left, slamming the front door. When he exited the

building, he was tackled by police in the front parking lot.

After Ford was arrested, he was placed in the unmarked vehicle of Detective

William Ballard (“Detective Ballard”). Detective Ballard did not ask Ford any questions

about the reasons for his arrest. As detectives approached Brown’s residence, Ford said

that “they had nothing to do with this,” that the detectives were “not going to find

anything,” and that he “hid the knife in the county.” When Ford told Detective Ballard that

he had not eaten and that he had low blood sugar, Detective Ballard stopped to get Ford

some food. Later, Ford began to talk about the incident again, saying, “[h]e cut me,” at

which point Detective Ballard advised Ford of his Miranda rights. Ford did not say

anything else to Detective Ballard.

Detective Ballard took Ford to an interrogation room at the Criminal Investigation

Division (“CID”). Ford was left in the room, where he ate his breakfast and fell asleep.

2
One hour and nine minutes later, Detective Kelly Harding (“Detective Harding”) and

Detective Jason McNemar (“Detective McNemar”) entered the room. Ford told the

detectives that he was cold, and they turned down the air-conditioning. When Detective

Harding asked Ford about the cut on his arm, he told her that he needed stitches. Detective

Harding read Ford his Miranda rights and began to question him. At one point, Ford told

the detectives that he is “schizophrenic with bipolar, seizures, and everything” and that he

had not taken his medication. The detectives also learned that Ford had not taken his

medication for diabetes in a couple of days. Ford made a number of incriminating

statements to Detectives Harding and McNemar. Indeed, Ford exclaimed, “Lord, forgive

me for what I’ve done, help me.” Recounting the altercation with Eltahir, Ford said,

“That’s when I told him, ‘You done messed up,’ and I cut him.” Ford also told the

detectives where he hid the knife.

We shall set forth additional facts as necessitated by our discussion of the issues on

appeal.

I. The Circuit Court Did Not Err In Admitting Ford’s Statements to Police.

Ford argues that the statements he made in custody were involuntary due to his

“weakened and distressed mental and physical state.” Ford further contends that the

confession he made during his interrogation at CID was improperly induced in exchange

for medical treatment. Although Ford waived his Miranda rights, Ford claims that his

waiver was neither knowing nor voluntary. Based on our review of the record, we hold

that Ford spoke voluntarily to the police at all times and that the waiver of his Miranda

rights was knowing and voluntary.

3
In reviewing the denial of a motion to suppress evidence, “we confine ourselves to

what occurred at the suppression hearing,” which we view “in a light most favorable to the

prevailing party on the motion.” Lee v. State, 418 Md. 136, 148 (2011); see also Daniels v.

State, 172 Md. App. 75, 87 (2006). Although we defer to the trial court’s factual findings

“unless they are shown to be clearly erroneous,” we will undertake “our own independent

constitutional appraisal, by reviewing the relevant law and applying it to the facts and

circumstances of this case.” Id. at 148-49. The constitutional question of voluntariness is

a mixed question of law and fact and, therefore, subject to de novo review on appeal. Smith

v. State, 220 Md. App. 256, 272 (2014); see also State v. Tolbert, 381 Md. 539, 557 (citing

Winder v. State, 362 Md. 275, 310 (2001)), cert. denied, 543 U.S. 852 (2004).

“In Maryland, when the State intends to use a confession or admission given by the

defendant to the police during custodial interrogation, the prosecution must, upon proper

challenge, establish by a preponderance of the evidence that the statement satisfies the

mandates of Miranda v. Arizona, and, that the statement is voluntary.” Tolbert, supra, 381

Md. at 557. A suspect’s waiver of Miranda rights is valid if “the totality of the

circumstances surrounding the interrogation reveals both an uncoerced choice and the

requisite level of comprehension.” Lee, supra, 418 Md. at 150 (internal quotations marks

omitted) (citing Moran v. Burbine, 475 U.S. 412, 421 (1986)). In Lee, the Court of Appeals

articulated the standard as follows:

First, the relinquishment of the right must have been voluntary
in the sense that it was the product of a free and deliberate
choice rather than intimidation, coercion, or deception.
Second, the waiver must have been made with a full awareness

4
of both the nature of the right being abandoned and the
consequences of the decision to abandon it.

Id. (citing Moran v. Burbine, 475 U.S. 412, 421 (1986)).

A. Ford’s Unsolicited Remarks to Detective Ballard Were Voluntary.

Ford concedes that his remarks to Detective Ballard were unsolicited and, therefore,

not subject to Miranda. Ford contends, however, that his remarks were involuntary due to

his “weakened and distressed mental and physical state.” In our view, the record of the

suppression hearing does not support this conclusion.

Under federal and Maryland constitutional law, a statement is involuntary if it

results from “police conduct that overbears the will of the suspect and induces the suspect

to confess.” Lee, supra, 418 Md. at 159. Under Maryland non-constitutional law, a

statement is involuntary when a suspect “is so mentally impaired that he does not know or

understand what he is saying, or when the confession is induced by force, undue influence,

improper promises, or threats.” Rodriguez v. State, 191 Md. App. 196, 224 (2010) (internal

quotation marks omitted) (quoting Hoey v. State, 311 Md. 473, 482-83 (1988)). To

determine whether a suspect’s statement was voluntary, the trial court must consider the

totality of the circumstances, including, inter alia, “the length of the interrogation, the

manner in which it was conducted, the number of police officers present throughout the

interrogation, and the age, education and experience of the suspect.” Winder v. State, 362

Md. 275, 307 (2001).

In the case sub judice, Ford’s remarks to Detective Ballard were voluntary

notwithstanding his mental and physical ailments. Although Ford suffers from mental

5
illness, the circuit court found that Ford was not exhibiting any symptoms on the day of

the arrest. Detective Ballard observed Ford walking on the street and testified that he was

“walking fine.” Later, Ford had no trouble walking from the patrol car into CID. Although

Ford complained of low blood sugar, Detective Ballard testified that Ford was responsive

and appeared to be “coherent and awake.” Indeed, Ford stopped talking after receiving his

Miranda warnings from Detective Ballard, suggesting that he could understand the

information and act accordingly. The record reflects that Ford knew what he was saying

and that his will was not overborne by Detective Ballard’s conduct.

B. Ford’s Statement to the Police at CID Was Voluntary.

Ford also claims that his statement to the detectives at CID was involuntary. We

disagree. As a preliminary matter, we observe that the general location and manner of

Ford’s interrogation was neither intimidating nor coercive. The interrogation room at CID

is seven feet by ten feet in size, with three chairs, a table, and a window. Ford was

handcuffed, and one of his ankles was shackled to the ground. The detectives were

unarmed, and Detective Harding was dressed in business attire. The interrogation lasted

about an hour, and Ford concedes that Detective Harding did not mistreat him or threaten

him.

Ford argues that his physical and mental condition at the time of the interrogation

rendered his statement involuntary. Detective Harding and Detective McNemar testified,

however, that Ford appeared coherent. Although Ford reported feeling cold -- a possible

symptom of low blood sugar -- he was provided with soda upon request. As for his injured

arm, Ford did not report any pain until much later in the interview, when the detectives

6
were already preparing to call a paramedic. Based on the video of the interrogation and

the detectives’ testimony, the circuit court found that Ford “was coherent and aware”

during the interrogation and that he “had a basic understanding of his rights.” The circuit

court further found “no signs that [Ford] was experiencing any side effects from low blood

sugar” or “that he was so impaired at the time of the interrogation that he was unaware of

what he was saying.” Because we cannot say that these findings were clearly erroneous,

we hold that Ford’s confession at CID was voluntary.

Ford contends, nonetheless, that his confession at CID was the result of improper

inducement. A statement obtained by threat or promise of advantage is involuntary under

Maryland law regardless of the other circumstances, “unless the State can establish that

such threats or promises in no way induced the confession.” Hill, supra, 418 Md. at 75-

76. An improper inducement occurs when the following conditions are satisfied:

(1) any officer or agent of the police force promises or implies
to a suspect that he will be given special consideration from a
prosecuting authority or some other form of assistance in
exchange for the suspect’s confession, and (2) the suspect
makes a confession in apparent reliance on the police officer’s
explicit or implicit inducement.

Id. at 76 (citing Hillard v. State, 286 Md. 145, 153 (1979)).

Turning to the case at hand, the record shows that Detective Harding and Detective

McNemar made no threats or promises during their interrogation of Ford. Ford rests his

claim of improper inducement on the following exchange:

QUESTION: You’re cold? Oh, it’s kind of warm in here. Um,
the officers that brought you in said that you -- you were
bleeding. Do you need medical assistance?

7
ANSWER: Yeah, I need stitches (unintelligible).

QUESTION: You need stitches?

ANSWER: Mm-hm.

QUESTION: Okay. All right, do you, okay, so really fast then,
um, so that we can get that started, um, the officer that brought
you in said that, um, he read you -- he advised you of your
rights and that sort of thing . . .

ANSWER: Mm-hm.

QUESTION: . . . but we have to do it again, okay? Like I said,
um, you know, you watch TV, you -- you know, you -- you
know that because you’re here and you’re in custody we have
to advise you and let you know, um, what your rights are. Um,
do you read and write in English?
ANSWER: N--not good, no.

There is no improper inducement here. Although there was a delay in providing medical

treatment, Detective Harding gave no indication that Ford would be denied medical

treatment if he refused to give the desired answer. Indeed, Detective Harding proceeded

to inform Ford for the second time that he had the right to remain silent. After reading

Ford his Miranda rights, Detective Harding mentioned that she was “kind of going fast”

because they had to “see what’s going on with [his] arm.” Based on these remarks, Ford

could expect to receive medical treatment even if he refused to provide an inculpatory

statement.

C. Ford’s Waiver of His Miranda Rights Was Knowing and Voluntary.

Ford received two separate Miranda warnings prior to his interrogation at CID.

Ford nonetheless proceeded to give a highly incriminating statement without the presence

or input of an attorney, thereby waiving his Miranda rights. Ford argues, however, that his

8
“weakened and distressed mental and physical state” led him to involuntarily waive his

Miranda rights. Ford further claims that he did not sufficiently understand the Miranda

warning because he is “not able to read and write well.”

It is undisputed that Detective Harding advised Ford of his Miranda rights verbally,

proceeding line-by-line. Ford signed each line and verbally affirmed that he understood

his rights. As we explain supra, the circumstances of Ford’s interrogation reveal no

intimidation or coercion, and the record shows that Ford was coherent, responsive, and

aware of his rights. We hold, therefore, that Ford knowingly and voluntarily waived his

Miranda rights.

Accordingly, the State carried its burden at the suppression hearing in showing, by

the preponderance of the evidence, that Ford’s custodial statements were voluntary and

consistent with Miranda. We hold, therefore, that the circuit court did not err in admitting

the statements.

II. The Circuit Court Did Not Abuse Its Discretion In Allowing Evidence of
Eltahir’s Character for Peacefulness.

Ford argues that the circuit court should not have allowed McQueen and Kane to

testify about Eltahir’s character for peacefulness. The State argues that the testimony was

admissible under Maryland Rule 5-404(a)(2)(C) because Ford had argued in his opening

statement that Eltahir was the first aggressor. We agree with the State.

A trial court has “wide latitude” to control the admissibility of evidence, and we

review such decisions under an abuse of discretion standard. Taneja v. State, 231 Md. App.

1, 11 (2016), cert. denied, 452 Md. 549 (2017) (citing Sifrit v. State, 383 Md. 116, 128

9
(2004)). A trial court abuses its discretion when it acts “in an arbitrary or capricious

manner” or “beyond the letter or reason of the law.” Id. at 11-12 (quoting Cooley v. State,

385 Md. 165, 175 (2005)). When a trial court allows a party to present rebuttal testimony,

we will reverse the ruling “only if it is manifestly wrong and substantially injurious.”

Johnson v. State, 228 Md. App. 27, 56 (2016), cert. denied, 450 Md. 120 (2016) (internal

citations omitted).

In general, “evidence of a person’s character or character trait is not admissible to

prove that the person acted in accordance with the character or trait on a particular

occasion.” Md. Rule 5-404(a)(1). In a homicide case, however, “the prosecutor may offer

evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was

the first aggressor.” Md. Rule 5-404(a)(2)(C). Here, the State asked McQueen and Kane

about Eltahir’s character for peacefulness before Ford offered any evidence that Eltahir

was the first aggressor. McQueen testified that Eltahir was a “quiet, nice person” and

“[n]ice to everybody.” Kane called Eltahir “a cool person” and said, “He was never, you

know nasty or hostile, or anything.” The State argues that this testimony was warranted

by Ford’s opening statement, which clearly presented Eltahir as the first aggressor and

strongly signaled that evidence would be produced on this point:

What Mr. Ford chose to do that night was to defend
himself. . . . [Eltahir] is a security guard, he was drinking that
night. You are going to hear evidence that [Eltahir] is younger
than Mr. Ford, bigger than Mr. Ford, and stronger than Mr.
Ford. And Mr. Ford is not the person that initiates any physical
contact, that’s [Eltahir].

So Mr. Ford finds himself being attacked by someone
that’s larger, someone that’s stronger, someone that’s faster,

10
and someone that’s bigger. And Mr. Ford makes a choice to
defend himself. Mr. Ford is forced to react. The only goal that
Mr. Ford had that day was to defend himself, and to make sure
that he didn’t get hurt.

***

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

He made an offhand verbal comment but he was not the
physical aggressor.

(Emphasis added). The question, then, is whether the circuit court reasonably interpreted

Maryland Rule 5-404(a)(2)(C) as allowing the testimony of McQueen and Kane in these

circumstances.

It is well established in Maryland that opening statements are not evidence. See

Maryland Criminal Pattern Jury Instructions 3:00 (2d ed., 2016 suppl.) (“Opening

statements and closing arguments of lawyers are not evidence.”); see also Dashiell v. State,

214 Md. App. 684, 694 (2013) (“An opening statement, of course, is not evidence . . .”).

The State argues, however, that if a defendant clearly signals in his opening statement that

he intends to introduce certain evidence, the State may rebut that evidence immediately,

without waiting for it to be admitted.

In support of this position, the State points to Snyder v. State, a case involving a

defendant who was convicted of murdering his wife. 361 Md. 580 (2000). At trial, the

State introduced evidence that Snyder had hit his wife. Id. at 610-611. On appeal, Snyder

11
argued that the evidence was impermissible character evidence that should not have been

admitted. Id. at 601. The Court of Appeals held that the evidence was admissible to prove

that Snyder had a motive for killing his wife. Id. at 610-611. The Court of Appeals went

on to explain in dicta that, even if the evidence were not admissible to prove motive, it was

nonetheless admissible as rebuttal evidence:

Yet, even if we agreed with the petitioner that such acts are not
admissible to prove motive, evidence that the petitioner hit his
wife, as well as evidence of more specific physical disputes,
are admissible as rebuttal evidence. In this case, the petitioner’s
attorney during opening statement reiterated the petitioner’s
sworn statement to the police that the petitioner’s relationship
with his wife was “great and getting better,” suggesting that it
was improbable that the petitioner murdered his wife. The
State was entitled to rebut that evidence.

Id. at 611 (emphasis added). Although the Court of Appeals did not explicitly extend its

reasoning to rebuttal evidence offered under Maryland Rule-5-404(a)(2)(C), the quoted

passage clearly contemplates that, in certain circumstances, a defendant’s opening

statement will open the door to rebuttal evidence that would otherwise be inadmissible.

In addition to the Court of Appeals’s opinion in Snyder, the State refers us to a line

of cases addressing anticipatory rehabilitation. In Hopkins v. State, we considered whether

the trial court erred in allowing the State to introduce a prior consistent statement to

rehabilitate a witness whose credibility had not yet been attacked. 137 Md. App. 200

(2001). We held that the prior consistent statement was admissible because the defendant

attacked the witness’s credibility in his opening statement. Id. at 208. We went on to give

the following guidance on remand:

12
During the retrial of this case, if the opening statement of
appellant’s trial counsel predicts that jurors will receive
evidence that would -- when presented -- “open the door” to
the introduction of the witness’s prior consistent statement, the
trial judge would have discretion under Md. Rule 5-611(a) to
admit that statement during the witness’s direct examination,
provided that the trial judge finds that the statement “detracts
from the [witness’s] impeachment” and is therefore admissible
under Md. Rule 5-616(c)(2).

Id. Similarly, in Fullbright v. State we affirmed the trial court’s decision to allow

rehabilitation on direct examination, rather than redirect, because the witness’s credibility

was attacked in the defendant’s opening statement. 168 Md. App. 168, 183-85 (2006).

Quoting Hopkins, we held that anticipatory rehabilitation evidence may be introduced

during direct examination if the defendant’s opening statement “predicts that jurors will

receive evidence that would -- when presented -- ‘open the door’ to the rehabilitation

evidence.” Id. (internal brackets and quotation marks omitted). In Hopkins and Fullbright,

we reasoned that anticipatory rehabilitation is within the discretion of the trial court under

Maryland Rule 5-611(a), which provides the following:

The court shall exercise reasonable control over the mode and
order of interrogating witnesses and presenting evidence so as
to (1) make the interrogation and presentation effective for the
ascertainment of the truth, (2) avoid needless consumption of
time, and (3) protect witnesses from harassment or undue
embarrassment.

In short, Snyder, Hopkins, and Fullbright support the proposition that, in certain

circumstances, a trial court may sometimes allow evidence to be introduced outside of the

usual order when warranted by the opposing party’s opening statement.

13
Turning to the case at hand, we need not decide whether Maryland Rule 5-611(a)

allows a trial court to admit rebuttal evidence under Maryland Rule 5-404(a)(2)(C) in

response to the defendant’s opening statement. We need only decide whether the circuit

court’s answer to this question was reasonable under the circumstances. We hold that the

circuit court reasonably allowed McQueen and Kane to testify to Eltahir’s character for

peacefulness in response to Ford’s opening statement.

In order to establish his claim of self-defense, Ford needed to prove that he was not

the first aggressor. See Thomas v. State, 143 Md. App. 97, 113 (2002) (“The accused

claiming the right of self-defense must not have been the aggressor or provoked the

conflict.”). But Ford could not do so without also proving that Eltahir was the initial

aggressor. Indeed, in his opening statement Ford clearly stated that Eltahir was the first

aggressor and strongly suggested that he would introduce evidence to prove it.1 It is well-

established that the purpose of an opening statement in a criminal case is “to inform the

trier of facts of the issues involved and what evidence will be offered as proof to resolve

those issues.” Allen v. State, 318 Md. 166, 178-79 (1989); see also Miles v. State, 88 Md.

App. 360, 387 (1991). In these circumstances, it was reasonable for the circuit court to

conclude that the foreshadowed evidence was indeed forthcoming and that, consequently,

1
Ford says that “any statement by defense counsel to the effect that Eltahir was the
first aggressor was based, in part, on evidence referred to by the State in its opening
statement and introduced in the State’s case-in-chief.” Because the question of who was
the first aggressor was crucial to Ford’s theory of self-defense, we are not convinced that
Ford’s opening statement was merely reactive. The relevant question, moreover, is not
whether the State raised the issue first, but whether the circuit court could reasonably
anticipate the introduction of evidence that Eltahir was the first aggressor.

14
the exact ordering of testimony and rebuttal was a matter within its sound discretion under

Rule 5-611(a).2

The reasonableness of the court’s conclusion here is underscored by the three

decisions discussed above -- Snyder, Hopkins, and Fullbright -- allowing trial courts to

admit otherwise inadmissible evidence for the purpose of anticipatory rehabilitation and

rebuttal. Because Maryland Rule 5-611(a) gives trial courts the discretion to allow

anticipatory rehabilitation, it could reasonably be interpreted as providing trial courts the

discretion to allow anticipatory rebuttal evidence under Maryland Rule 5-404(a)(2)(C).3

Such a conclusion would be consistent with the dicta in Snyder, which would allow the

anticipatory rebuttal of evidence referenced in an opening statement. Under these

circumstances, we cannot say that the trial court acted in an arbitrary or capricious manner.

2
If we were to adopt Ford’s view that Maryland Rule 5-404(a)(2)(C) allows the trial
court no flexibility in the order of presentation, we would give homicide defendants an
unwarranted strategic advantage. A defendant would be allowed, for example, to impugn
the victim’s character in his opening statement, but then refrain from offering evidence on
the point, thereby leaving the State with no means to dispel the shadow hanging over its
case. See Fullbright, supra, 168 Md. App. at 185 (noting that, if anticipatory rehabilitation
were prohibited, “appellant would have an unwarranted advantage in impeaching a witness
with an assurance that his credibility would remain impaired” (internal quotation marks
omitted)).
3
Ford cites cases from other jurisdictions in asking us to adopt a restrictive
interpretation of Maryland Rule 5-404(a)(2)(C). We do not find these cases persuasive.
Indeed, we cannot conclude that the circuit court’s ruling is unreasonable merely because
a few courts in other states may have taken a different view.

15
We hold, therefore, that the circuit court did not abuse its discretion in allowing McQueen

and Kane to testify to Eltahir’s character for peacefulness.4

III. The Circuit Court Did Not Abuse Its Discretion In Allowing Brown to Testify
Regarding Ford’s Reaction to Being Told That He Had to Leave Her House.

At trial, Brown testified that Ford “cursed [her] out” and “slammed the front door”

when she refused to let him stay at her house any longer. Ford contends that Brown’s

testimony amounted to impermissible character evidence and that, insofar as it was offered

to show “consciousness of guilt,” it was irrelevant. Even if Brown’s testimony had some

probative value, Ford argues that its probative value was outweighed by the risk of undue

prejudice. We disagree. Brown’s testimony was admissible to show Ford’s guilty state of

mind. Further, the circuit court did not abuse its discretion in concluding that the probative

value of the testimony outweighed the risk of undue prejudice and considerations of

cumulative evidence.

A. Brown’s Testimony Was Admissible to Show Ford’s Guilty State of Mind.

Because trial courts do not have the discretion to admit irrelevant evidence, we

review a trial court’s determination of relevancy de novo. State v. Simms, 420 Md. 705,

724-725 (2011); see also Md. Rule 5-402 (“Evidence that is not relevant is not

admissible.”); see also Parker v. State, 408 Md. 428, 437 (2009) (“When the trial judge’s

4
In allowing the testimony, the trial judge referred to an earlier discussion that she
had with counsel about the “opening the door” doctrine. The focal point of that discussion
was Terry v. State, which says that an opening statement may “open the door” for the
opposing party to introduce otherwise inadmissible evidence. 332 Md. 329, 337 (1993).
The “opening the door” doctrine “is really a rule of expanded relevancy.” Id. As such, it
is not, strictly speaking, applicable to the case at hand, where the evidence in question is
relevant but goes to character.
16
ruling involves a legal question, however, we review the trial court’s ruling de novo.”); see

also Ruffin Hotel Corp. of Md. v. Gasper, 418 Md. 594, 620 (2011) (“Maryland Rule 5-

402, however, makes it clear that the trial court does not have discretion to admit irrelevant

evidence.”). In general, “evidence of a person’s character or character trait is not

admissible to prove that the person acted in accordance with the character or trait on a

particular occasion.” Md. Rule 5-404(a)(1).

Here, Brown’s testimony was not introduced to show Ford’s temper, but as evidence

that Ford had a guilty state of mind.5 Such evidence is admissible so long as it is relevant

and its probative value is not outweighed by the risk of undue prejudice, as we explained

in Wagner v. State:

It is well established in Maryland that, “[i]f relevant,
circumstantial evidence regarding a defendant’s conduct may
be admissible under Md. Rule 5-403, not as conclusive
evidence of guilt, but as a circumstance tending to show a
consciousness of guilt.”

213 Md. App. 419, 465 (2013) (quoting Decker v. State, 408 Md. 631, 640 (2009)).

Consciousness of guilt evidence may include “flight after a crime, escape from

confinement, use of a false name, and destruction or concealment of evidence.” Decker v.

State, 408 Md. 631, 640-41 (2009) (internal citations omitted). Such evidence is admissible

because “the particular behavior provides clues to the person’s state of mind,” which is

5
Although portions of the exchange between the State and the trial judge are not
recorded in the transcript, the gist is clear enough. The State explained to the trial judge
that Brown’s testimony “goes to consciousness of guilt.” The State expressly denied that
it was offering character evidence, saying, “I have stayed away from the whole temper
thing, based on what the Court has said so far, and I’m not going to ask her anything about
his reputation or any of that, just what he did that morning.”
17
relevant “because the commission of a crime can be expected to leave some mental traces

on the criminal.” Id. (quoting Thomas v. State, 372 Md. 342, 351 (2002)). Evidence of

post-crime conduct must satisfy four inferences to be admissible to show consciousness of

guilt:

(1) from the defendant’s conduct, a desire to evade prosecution
or conceal evidence; (2) from a desire to evade prosecution or
conceal evidence, consciousness of guilt; (3) from
consciousness of guilt, consciousness of guilt with respect to
the charged offenses; and (4) from consciousness of guilt with
respect to the charged offenses, actual guilt.

Wagner v. State, 213 Md. App. 419, 465 (2013) (citing Thomas v. State, 397 Md. 557, 576

(2007)).

In the case at hand, Ford’s reaction to being told that he had to leave Brown’s house

tended to show his guilty state of mind. Because Ford was staying at Brown’s house to

hide from the police, Ford’s conduct was analogous to “flight after a crime, escape from

confinement, use of a false name, and destruction or concealment of evidence.” Decker,

supra, 408 Md. at 640-41. When Brown told Ford that he could no longer stay at her house,

Ford’s reaction tended to show that he was desperate to avoid the legal consequences of

his actions. A jury could reasonably conclude that Ford’s desperation was one of the

“mental traces” left on his mind by his recent crime.

Ford posits a number of alternative psychological explanations for his angry

reaction. The possibility of an innocent explanation, however, is not sufficient to render

the evidence inadmissible. See Wagner, supra, 213 Md. App. at 465 (“Simply because

there is a possibility that there exists some innocent, or alternate, explanation for the

18
conduct does not mean that the proffered evidence is per se inadmissible.”) (quoting

Thomas v. State, 397 Md. 557, 576 (2007)). As the Court of Appeals has explained,

To be relevant, it is not necessary that evidence of this nature
conclusively establish guilt. The proper inquiry is whether the
evidence could support an inference that the defendant’s
conduct demonstrates a consciousness of guilt. If so, the
evidence is relevant and generally admissible.

Simms, supra, 420 Md. at 727 (emphasis in original). Although other explanations are

possible, Brown’s testimony could support an inference that Ford’s conduct demonstrates

a consciousness of guilt. We hold, therefore, that Brown’s testimony was both relevant

and admissible to show Ford’s guilty state of mind.

B. The Circuit Court Did Not Abuse Its Discretion In Admitting Brown’s
Testimony.

Ford argues that the probative value of Brown’s testimony was outweighed by “the

danger of the jury taking [Ford’s] reaction to Brown as evidence of the character trait of

aggressiveness or hot-temperedness, and inferring action in conformity therewith in the

encounter with Eltahir.” Ford points out that “there was already evidence from which the

jury could infer that his being at Brown’s residence was consciousness of guilt.” We hold

that the circuit court acted within its discretion.

To be sure, Maryland Rule 5-403 allows a trial judge to exclude relevant evidence

based on “the danger of unfair prejudice, confusion of the issues, or misleading the jury,

or by considerations of undue delay, waste of time, or needless presentation of cumulative

evidence.” Md. Rule 5-403 (emphasis added). We have consistently held, however, that

“[t]his inquiry is left to the sound discretion of the trial judge and will be reversed only

19
upon a clear showing of abuse of discretion.” Thomas v. State, 168 Md. App. 682, 713

(2006), aff’d, 397 Md. 557 (2007) (quoting Malik v. State, 152 Md. App. 305, 324 (2003));

see also Simms, supra, 420 Md. at 724 (noting that trial courts have “wide discretion when

weighing the relevancy of evidence”); see also Parker, supra, 408 Md. at 437 (2009)

(“When the trial judge’s ruling involves a weighing, we apply the more deferential abuse

of discretion standard.”).

In the case at hand, the circuit court was in the best position to weigh the probative

value of Brown’s testimony against countervailing considerations. Because the circuit

court had wide discretion in this inquiry, we will not disturb its ruling in the absence of

clear abuse. In our view, a reasonable trial judge could have concluded that the details of

Ford’s emotional reaction, far from being cumulative, showed his desperation and

strengthened the overall inference that he had a guilty state of mind. As for the risk of

undue prejudice, we are not convinced that Brown’s testimony was, on its own, likely to

give rise to an improper inference about Ford’s character.6 We hold, therefore, that the

circuit court did not abuse its discretion in admitting Brown’s testimony.

6
The State did invite such an improper inference in its closing argument, saying,
“Sheila Brown told him he had to leave and he didn’t like it. And what was his reaction
when he didn’t like being told he had to leave? His reaction was that he cursed, slammed
doors, and raged around. You can contrast that with the defendant [apparently meaning
Eltahir] who was easy going.” Because Ford did not object to the State’s use of Brown’s
testimony in its closing argument, our review is limited to the risk of undue prejudice
presented by the testimony itself.

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IV. The Circuit Court Did Not Abuse Its Discretion In Limiting Ford’s Cross-
Examination of Kane.

Ford argues that the circuit court improperly barred him from impeaching Kane with

an excerpt from Kane’s interview with police, thereby violating his rights under the

Confrontation Clause of both the federal and state constitutions.7 During his cross-

examination of Kane, Ford wanted to use the following exchange as a prior inconsistent

statement:

QUESTION: All right, good, that’s fine. All right, so you see,
so this guy, Ford, comes over, says something derogatory
about I want your sister and he jumped, ah, Mohamed jumps
up and then he lunges at, um Ford, you know, ‘cause they’re,
he’s upset . . .

[KANE]: Yeah, he . . .

QUESTION: . . . about him?

[KANE]: Yeah.

QUESTION: And then they get, and then you start to walk
away ‘cause you don’t want no part of it.

[KANE]: Right.

Ford argued that Kane, in giving an affirmative response to the detective’s narrative, had

effectively adopted that narrative, thereby allowing Ford to treat the question and answer

7
We agree with Ford that his general objection at trial was sufficient to preserve the
Confrontation Clause issue for our review. See Graves v. State, 334 Md. 30, 37-38 (1994)
(holding that the defendant’s general objection to a witness’s testimony preserved “all
grounds . . . as to that testimony,” including Confrontation Clause grounds); see also Md.
Rule 4-323(b) (“The grounds for the objection need not be stated unless these rules
expressly provide otherwise or the court so directs.”).
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together as a prior inconsistent statement. The trial judge disagreed, questioning the

reliability of the officer’s narrative:

There’s no reliability, and there’s no foundation for asking that.
You have no idea why they asked that question to come up with
those facts, in that manner.

Rejecting the notion that Kane had adopted the officer’s narrative, the trial judge forbade

Ford from quoting the officer’s words in his questioning of Kane:

So, if you want to ask him what he told the police, you want to
ask him how he responded to the police, that’s different with
his words. Not their words. You’re trying to turn their words
into his.

We hold that the circuit court acted within its discretion in barring this line of questioning.

A defendant is generally allowed to attack a witness’s credibility through questions

directed at proving that the witness has made statements that are inconsistent with the

witness’s present testimony. Md. Rule 5-616(a). A trial court has wide latitude, however,

to control the admissibility of evidence. Taneja, supra, 231 Md. App. at 11. Relevant

evidence “may be excluded if its probative value is substantially outweighed by the danger

of unfair prejudice, confusion of the issues, or misleading the jury.” Md. Rule 5-403.

In the case at hand, it is not clear that that the excerpt in question constitutes a prior

inconsistent statement. Because Kane was responding to a compound question, he may

not have intended his affirmative response to encompass every part of the narrative put

forward by the officer. Indeed, Kane was not finished responding when the officer

interrupted him, and he may have intended to limit his affirmation to a particular facet of

the narrative. More broadly, the circuit court reasonably questioned whether Kane’s

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“adopted statement” could be helpful to the jury without any context to explain the basis

of the underlying statement. Because the officer questioning Kane did not witness the

altercation, the version of events that he presented to Kane -- if it was at all reliable -- must

have been derived from Kane’s previous answers. Those statements, however, were not

offered at trial. Ford was essentially asking Kane to play a game of telephone with

himself -- to affirm or deny his ambiguous response to a third party’s reformulation of his

prior statements. There was a risk, moreover, that the officer had injected his own

inferences and assumptions into the narrative that he presented to Kane.

To be sure, “the exposure of a witness’ motivation in testifying is a proper and

important function of the constitutionally protected right of cross-examination.”

Delaware v. Van Arsdall, 475 U.S. 673, 678-79 (1986) (quoting Davis v. Alaska, 415 U.S.

308, 316-17 (1974)); see also Peterson v. State, 444 Md. 105, 122 (2015) (“The right of

confrontation includes the opportunity to cross-examine witnesses about matters relating

to their biases, interests, or motives to testify falsely.”). A defendant must be “permitted

to expose to the jury the facts from which jurors, as the sole triers of fact and credibility,

could appropriately draw inferences relating to the reliability of the witness.” Martinez v.

State, 416 Md. 418, 428 (2010) (quoting Davis, supra, 415 U.S. at 318); see also

Smallwood v. State, 320 Md. 300, 307 (1990) (stating that a trial court must afford a

defendant the “constitutionally required threshold level of inquiry.”).

At the same time, “trial judges retain wide latitude insofar as the Confrontation

Clause is concerned to impose reasonable limits on such cross-examination based on

concerns about, among other things, harassment, prejudice, confusion of the issues, the

23
witness’ safety, or interrogation that is repetitive or only marginally relevant.” Van

Arsdall, supra, 475 U.S. at 678-79; see also Martinez, supra, 416 Md. at 428 (“The court,

nevertheless, ‘must allow a defendant wide latitude to cross-examine a witness as to bias

or prejudices’ so long as the questioning does not ‘obscure the trial issues and lead to the

factfinder’s confusion.’ ”) (quoting Smallwood, supra, 320 Md. at 307-08).

Here, the circuit court reasonably found that Kane’s supposed prior statement was

ambiguous without further context and that, consequently, Ford’s line of questioning was

likely to confuse both Kane and the jury. The circuit court did not prevent Ford from using

Kane’s interview with the police to impeach him; the court merely asked that Ford impeach

Kane with his own words and not the words of a third party. Indeed, Ford’s counsel

proceeded to impeach Kane with another portion of the excerpt. Ford’s counsel asked

Kane if he had said to the police, “And then Mohamed got up.” When Kane responded

that he couldn’t recall, Ford’s counsel referred Kane to another part of the transcript where

he had, indeed, said, “And then Mohamed got up.” As this line of questioning shows, the

circuit court’s ruling did not prevent Ford from exposing inconsistencies in Kane’s

testimony, from which the jury could infer that Kane was an unreliable witness. Ford was

allowed, therefore, the “constitutionally required threshold level of inquiry” into Kane’s

credibility. Because the circuit court acted properly within its discretion and in accordance

with constitutional law, we affirm the judgment of the circuit court.

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

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