Meredith, Woodward, Kenney, James A., III (Retired, Specially Assigned) JJ.
Deangelo Ferdale Savage, appellant, was tried before a jury in the Circuit Court for Wicomico County and convicted of various offenses arising out of his involvement in a burglary that occurred on December 17, 2010. In his timely appeal, appellant presents three questions for our review, which we have expanded into four and rephrased as follows:
1. Did appellant's two convictions for conspiracy to commit first-degree burglary offend double jeopardy principles?
2. Did the trial court err in not merging the conviction for accessory to first-degree burglary with the conviction(s) for conspiracy to commit first-degree burglary?
3. Did the trial court err in restricting the cross-examinations of Demarics Banks and Sergeant Chastity Blades?
4. Did the trial court err in admitting evidence that the occupant of the burglarized home was killed?
For the reasons that follow, we shall affirm in part and remand in part the judgment of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
Reginald Greene lived at 1704 Dale Lane in Salisbury, Maryland ("the Greene home") with his sister Barbara Greene. When he returned home at approximately midnight on December 17, 2010, he noticed that "the back door was busted open." Walking into the living room, he saw clothes "spread out in the hallway" and "a little blood." Continuing into the kitchen, he found a rug that had been "pushed over, " and saw snow and footprints on the floor near the back door. He left the house and called the police, who responded and searched the Greene home. When Mr. Greene later returned to the house, he observed that the upstairs bedrooms was "tore up" – "[t]he doors was off the hinges, " "boxes and stuff was ransacked, " and "[t]he drawers was out, busted up."
Sergeant Scott Cook, who responded to Mr. Greene's call, testified that the living room was "very neat" and the kitchen was "undisturbed, " but described Mr. Greene's bedroom as "ransacked. The drawers were pulled out, emptied, the closet doors were open, stuff was pulled out all over the floor." Ms. Greene's bedroom "wasn't nearly as ransacked, " but it appeared that somebody had "done a cursory-type search." According to Sergeant Cook, Demarics Banks and Shawn Franklin "were the first two suspects that were developed, " and, later, appellant was developed as the third.
On December 23, 2010, Detective Chris Taylor and Detective Tingle interrogated appellant at the Wicomico County's Sheriff's Office. During that interrogation, according to Detective Taylor, appellant "was indicating that he didn't know . . . who we were talking about" and that he "had no involvement whatsoever."
Sergeant Steve Hall testified that he watched the detectives' interrogation "from another room." After it was over, he and Sergeant Chastity Blades had an impromptu conversation with appellant, which he recounted to the prosecutor at trial:
[Sergeant Hall]: I believe [appellant] said that he had talked to Demarics Banks and Shawn Franklin about committing a burglary at [the Greene home].
He said that Banks and Franklin were pushing him to take them to where the [Greene home] was. . . .
[Prosecutor]: Did he acknowledge that he had assisted them in planning the burglary?
[Sergeant Hall]: Yes.
[Prosecutor]: Did he acknowledge that he and [Tavonne Clark-Smith, who dated appellant after ending a romantic relationship with Mr. Greene, ] took [Banks] to show them where the [home] was located?
[Sergeant Hall]: Yes, they actually rode by the [home] and he identified the [home] for Banks and Franklin.
[Prosecutor]: Did he say anything with respect to his involvement in the burglary?
[Sergeant Hall]: He wasn't involved in the burglary. He said that he had backed out at the last minute before they went and actually committed the burglary.
Regarding that same conversation, Sergeant Blades testified:
[Appellant] at first, denied any involvement in the burglary, and then admitted that he had contact with both Demarics Banks and Shawn Franklin, about committing the burglary. More so with Demarics Banks and that they had agreed that there would be a burglary, that would occur, that no one was supposed to be home. There wasn't an agreement as to what portion he would get of the burglary, but there was an agreement that he would get something out of the burglary.
He further went on to say that Tavonne Clark-Smith had dated, I believe, it was Reginald Greene and that Demarics Banks and Shawn Franklin knew that she had dated him and . . . believed that . . . she would know where he lived and wanted her to . . . drive them by there.
[Prosecutor]. Did he acknowledge that she did, in fact, do that?
[Sergeant Blades]: Yes, he did.
[Prosecutor]: Did he acknowledge that he was present when that occurred?
[Sergeant Blades]: Yes, he did.
[Prosecutor]: Did he say anything to you about trying to change his mind?
[Sergeant Blades]: He said that he did change his mind but that he did not relay that to Demarics Banks or Shawn Franklin. He said that he had changed his mind prior to the burglary occurring but that he had not relayed that to anyone.
Clark-Smith testified that appellant "kept asking [her] over and over and over again" where Mr. Greene lived, but she never asked why he wanted to know. Finally, during a car ride a few weeks before the burglary, she pointed out the location of the Greene home to appellant and Banks.
Banks, who cooperated as a State's witness in accordance with a plea agreement, testified:
• "the plan to burglarize the [Greene] home" was "originally between [appellant] and [Franklin]";
• Banks did not "get any of the information about the [Greene home] and the money" – including the location of the Greene home, the amount of money therein (approximately $65, 000), or the exact location of that money (in the "[b]ottom drawer of [a] dresser") – "from anybody other than" appellant,  with whom he "discussed" the burglary plan "[o]nce or twice" and with whom he would "split that money";
• Clark-Smith had pointed out the location of the Greene home when she, he, and appellant had driven by it;
• appellant "asked [him] to do" the robbery, but Banks did not "let [appellant] know that" he was "going to do it that night." Instead, he "called [Franklin], " and they agreed that they would just "tell [appellant] when [they] did it";
• Franklin already knew about the Greene home and the money, but Franklin didn't tell him that until "after the fact"; and
• he and Franklin together burglarized the Greene home. Afterwards, they went to appellant's home and told appellant that the burglary had been unsuccessful.
Franklin, appellant's only witness, testified that: (1) he received his information about the burglary from Banks; (2) he never discussed the burglary with appellant; and (3) appellant did not play "any role in this burglary." On cross-examination, the prosecutor questioned Franklin about contradictions between this testimony and statements he had made during a December 23, 2010 interview with Detective Taylor. In that interview, the transcript of which was entered into evidence, Franklin stated that:
• there was a conversation in which Clark-Smith "told me there's a lot of cash somewhere." Franklin asked appellant, who he knew as "D, " " s o you going to put me on to that, what you was talking about? [Appellant] was like no, you got to give me some time. . . . I was keeping asking, but he never – you know, but then like down the line, he . . . told Banks and shit";
• he "kn[e]w nothing about" money being inside the Greene home until he "and Banks talked about it Wednesday[, December 15, 2010] by ourselves" at 407 Hastings Street, which Franklin identified as appellant's residence. According to Franklin, Banks had stated that appellant had told Banks about the money;
• on Thursday, December 16,  there was another conversation at 407 Hastings Street among Franklin, Banks, and appellant regarding the robbery plan. According to Franklin, appellant "didn't really say nothing, only – but only about the cash. He's saying, yeah, it's there, where it was at and everything. . . . It was right – it's in the bottom of the drawer where all the envelopes and stuff at";
• the robbery was originally planned for Thursday night, "[b]ut I had to . . . babysit my son the whole night, so we didn't do nothing";
• appellant "wasn't going to" participate in the actual robbery attempt, and thus, although appellant "probably knew [the burglary] was going to go down, " "[h]e probably ain't know for real" exactly when it was going to occur;
• although appellant had instructed Banks "to go by himself" on the robbery, Banks "took [Franklin] anyway" on Friday, December 17, without telling appellant. "But at first he wouldn't take me because he had to break off [appellant]. But he was like, fuck it, he just break it off on his half." In other words, Banks and Franklin were going to "split it down the middle, " and "Banks was going to give [appellant] out of his cut" in return for the information about the Greene home; and
• after the robbery attempt, Banks and Franklin went to 407 Hastings Street, and appellant was "angry because he thought we got something[.]"
Appellant was convicted of: (1) two counts of conspiracy to commit first-degree burglary (2) two counts of conspiracy to commit third-degree burglary, (3) one count of accessory before the fact to first-degree burglary, and (4) one count of accessory before the fact to third-degree burglary. For sentencing purposes, the court merged the two third-degree burglary-conspiracy convictions into the two first-degree burglary-conspiracy convictions, and merged the third-degree burglary-accessory conviction into the first-degree burglary-accessory conviction. Thus, when "the dust settled, " sentencing was based on two convictions for conspiracy to commit first-degree burglary (one conspiracy between appellant and Franklin, and another conspiracy between appellant and Banks) and a conviction for accessory to first-degree burglary. Appellant was sentenced to consecutive eight-year terms for each of those three remaining convictions. Further facts shall be introduced as required for our analysis.
A criminal conspiracy is "the combination of two or more persons, who by some concerted action seek to accomplish some unlawful purpose, or some lawful purpose by unlawful means." Mason v. State, 302 Md. 434, 444 (1985). As Judge Moylan has reminded us, conspiracy is a "common law crime" that "arrived in our then proprietary colony as part of the unseen cargo of the Ark and the Dove." Rudder v. State, 181 Md.App. 426, 432 (2008). At common law, conspiracy "is complete without any overt act" to advance its goal, Mason, 302 Md. at 444, and is "a crime at the moment the agreement is formed[.]" Paul Marcus, Conspiracy: The Criminal Agreement, in Theory and in Practice, 65 Geo. L.J. 925, 930 (1977).
The "unit of prosecution" for conspiracy is "the agreement or combination, rather than each of its criminal objectives." Tracy v. State, 319 Md. 452, 459 (1990). "A single agreement . . . constitutes one conspiracy, " and "multiple agreements . . . constitute multiple conspiracies." United States v. Broce, 488 U.S. 563, 570-71 (1989). In other words, the conviction of "'a defendant for more than one conspiracy turns on whether there exists more than one unlawful agreement.'" United States v. Nyhuis, 8 F.3d 731, 734 (11th Cir. 1993) (quoting United States v. Cochran, 883 F.2d 1012, 1016 (11th Cir.1989)).
It is the State's position that it "presented evidence that [appellant] made two separate agreements – one with Banks, and one with Franklin – to burglarize" the Greene home, and therefore appellant "properly received separate punishments for separate conspiracies." (Emphasis added). Appellant contends that any agreements he made with Banks and Franklin were part of one overall conspiracy to burglarize the Greene home, and thus he is being punished twice for the same crime in violation of the prohibition against double jeopardy.
As appellant contends, multiple agreements can be part of a single conspiracy, State v. Choppy, 141 N.C.App. 32, 40 (2000), because "[a] single conspiracy can include subgroups or subagreements[.]" 16 Am. Jur. 2d Conspiracy § 36; United States v. Patterson, 819 F.2d 1495, 1502 (9th Cir. 1987). The context of the case being prosecuted will determine which side – prosecution or defense – argues that there is only one agreement or conspiracy. See United States v. Abbamonte, 759 F.2d 1065, 1068 (2d Cir. 1985) ("Whether a defendant's criminal activities establish his participation in one large conspiracy or two separate conspiracies is an issue on which prosecutors and defense counsel have often changed positions 'as nimbly as if dancing a quadrille.'") (quoting Orloff v. Willoughby, 345 U.S. 83, 87 (1953)).
The prosecution may charge multiple conspiracies with "the hope that the defendant(s) would receive heavier sentences[.]" United States v. Cerro, 775 F.2d 908, 910 (7th Cir. 1985). But, perhaps counterintuitively, it is "[m]ore often" the case that "it is the [prosecution] that is arguing for a single overarching conspiracy, " id., in order "to introduce the acts and statements made by co-conspirators in a transaction against individuals involved in an entirely separate transaction by relying upon the co-conspirators' exception to the hearsay rule." Bolden v. State, 44 Md.App. 643, 650 (1980). The prosecution takes that approach "when more than two conspirators are jointly tried, some of the conspirators are not known to the other conspirators, and a single all-encompassing conspiracy is charged." Paul Marcus, Prosecution and Defense of Criminal Conspiracy Cases § 4.02, at 4-11 (2012). In that situation, the defendant may contend that there were multiple conspiracies and his involvement was limited to only one smaller conspiracy, see Ianelli v. United States, 420 U.S. 770, 784 (1975); United States v. Prince, 515 F.2d 564, 567 (5th Cir. 1975), and advance a variance argument. See Abbamonte, 759 F.2d at 1068 (When a defendant "urges that, though the indictment alleged one conspiracy, the evidence showed at least two, " he may "challenge[ the] conviction on the ground of variance[.]").
The State has the burden to prove the agreement or agreements underlying a conspiracy prosecution. See Albert J. Harno, Intent in Criminal Conspiracy, 89 U. Pa. L. Rev 624, 632 (1941) (prosecution must "prove as laid the agreement on which" a particular conspiracy charge is based). If the prosecution seeks to establish a single conspiracy, it has the burden "to prove the existence of 'one overall conspiracy . . . as opposed to separate and independent conspiracies.'" United States v. Trainor, 477 F.3d 24, 35 (1st Cir. 2007) (emphasis added). If it seeks to establish multiple conspiracies, it "has the burden of proving a separate agreement for each conspiracy." 16 Am Jur 2d Conspiracy § 40 (emphasis added).
When a defendant "contends that only one conspiracy exists, while the [prosecution] insists there are at least two, " he "challenges [his] conviction[s] on the ground of double jeopardy[.]" Abbamonte, 759 F.2d at 1068. The theory underlying the double jeopardy challenge is that, "[t]o convict [him] severally for being part of two conspiracies when in reality he is only involved in one overall conspiracy would be convicting him of the same crime twice." United States v. Palermo, 410 F.2d 468, 470 (7th Cir. 1969) (citations omitted).
To be sure, determining the number of conspiracies and distinguishing one agreement from another is a "challenge" with which "[c]ourts have long wrestled." Anne Bowen Poulin, Double Jeopardy Protection from Successive Prosecution: a Proposed Approach, 92 Geo. L.J. 1183, 1274 n.507 (2004). This is, in part, because "[t]he Supreme Court has not . . . established in the double jeopardy context how to determine whether there was one agreement or more than one agreement, " William H. Theis, The Double Jeopardy Defense and Multiple Prosecutions For Conspiracy, 49 SMU L. Rev. 269, 286 (1996), and because conspiracy law is often "a veritable quicksand of shifting opinion and ill considered thought." Francis B. Sayre, Criminal Conspiracy, 35 Harv. L. Rev. 393, 393 (1922).
To address the single as opposed to multiple conspiracies question, it is "necessary to analyze the nature of the agreement" or agreements, Mason v. State, 302 Md. 434, 445 (1985), and to ask, when there are agreements among several parties, "whether there was 'one overall agreement' to perform various functions to achieve the objectives of the conspiracy, '" or separate conspiracies. United States v. Arbelaez, 719 F.2d 1453, 1457 (9th Cir. 1983) (quoting United States v. Zemek, 634 F.2d 1159, 1167 (9th Cir. 1980)). In making that determination, some courts consider the "totality of the circumstances" in their analysis. United States v. Fenton, 367 F.3d 14, 19 (1st Cir. 2004); United States v. Smith, 450 F.3d 856, 860 (8th Cir. 2006). Justice Blackmun has observed that courts "have looked to a number of discrete factors. Some of these include the relevant (1) time, (2) participants, (3) . . . offenses charged, (4) overt acts charged, and (5) places where the alleged acts took place." United States v. Broce, 488 U.S. 563, 585 n.2 (1989) (Blackmnun, J., dissenting) (citations omitted).
In the multiple conspiracy context, the agreements are "distinct, " Manuel v. State, 85 Md.App. 1, 12 (1990), and "independent" from each other, Timney v. State, 80 Md.App. 356, 368 (1989), in that each agreement has "its own end, and each constitutes an end in itself." United States v. Sababu, 891 F.2d 1308, 1322 (7th Cir. 1989) (citing Blumenthal v. United States, 332 U.S. 539, 558-59 (1947)). If the prosecution fails to present "proof sufficient to establish a second conspiracy, " it follows that "there [is] merely one continuous conspiratorial relationship, " Vandegrift v. State, 82 Md.App. 617, 646 (1990), or one "ongoing criminal enterprise, " Rudder v. State, 181 Md.App. 426, 448-49 (2008), that is "evidenced by" the multiple acts or agreements "done in furtherance of it." Greenwald v. State, 221 Md. 245, 250 (1960); see Bergeron v. State, 85 Wis.2d 595, 608 (1978) ("It is not unusual for a conspiracy to require successive steps before its unlawful objective is accomplished.").
Although we have not been alerted to or found any cases in Maryland that directly address the issues before us, several inform our analysis. In Tracy v. State, 319 Md. 452 (1990), Tracy was found guilty of conspiracy to commit murder and conspiracy to commit robbery with a deadly weapon. On appeal,
[t]he State contend[ed] that the evidence established two separate criminal conspiracies between Tracy and [Jordan]. The first was that Jordan would kill Purman with a knife, and they would take Purman's car and drive it west. The second conspiracy occurred during the commission of the crimes when Jordan was unable to stab Purman; the State contend[ed] that at that time there was a new agreement that Tracy would carry out the murder and robbery with a gun.
Id. at 459. The Court of Appeals saw instead "one continuous conspiratorial relationship .. . to commit robbery and murder, " and held that "Tracy's and Jordan's decision to change which of the two participants would actually carry out the intended murder and to change the type of weapon to be used to commit the crimes would not be sufficient to constitute a second conspiracy." Id.
In Ezenwa v. State, 82 Md.App. 489 (1990), each defendant was charged with and convicted of "two distinct conspiracies: (1) to import heroin and (2) to distribute heroin." Id. at 498. The defendants asserted on appeal that they were "prejudiced by the failure to dismiss one of the two counts of conspiracy and, therefore, that [the] convictions must be reversed." Id. at 499. The State
conceded that a single agreement underlay both conspiracy counts. It stated, however, that that agreement had two distinct objectives; hence, it maintained that, for that reason, the conspiracy was properly charged in two counts. In the State's view, both counts had to be submitted to the jury and, in the event that the jury found appellants guilty of both, their remedy lay in their being sentenced on only one.
Id. at 498. The State also contended that because "each count contained a different element, i.e., the different object of the conspiracy, they are not the same offense" under the ...