[Copyrighted Material Omitted]
Appeal from the Circuit Court for Allegany County. Gary G. Leasure, Judge.
Argued by: Alex M. Dempsey (Buckley Sandler, LLP of Washington, D.C. and Paul DeWolfe, Public Defender of Baltimore, MD) all on the brief for Appellant.
Argued by: Todd W. Hesel (Douglas F. Gansler, Attorney General on the brief) all of Baltimore, MD for Appellee.
Panel: Meredith, Kehoe, Hotten, JJ.
[216 Md.App. 499] Kehoe, J.
This tragic case arises out of a neighborhood dispute over a No Trespassing sign that ended when appellant, Alexander Eugene Malaska, shot and killed Dennis Liller. After a four-day trial by jury in the Circuit Court for Allegany County, Malaska was convicted of voluntary manslaughter and acquitted of second degree murder.
Malaska appeals his conviction and presents three questions for our review, which we have rephrased:
I. Did the trial court violate Malaska's right of confrontation by admitting into evidence Liller's autopsy report through the testimony of the supervising medical examiner when the physical dissection was performed by a subordinate medical examiner who was not available for cross-examination at trial?
II. Did the trial court err in failing to instruct the jury as to the doctrines of " transferred intent self defense" and " defense of others" ?
III. Did the trial court err in denying Malaska's motion to suppress statements he made during a police interrogation?
Applying principles enunciated in Williams v. Illinois,
__ U.S. __, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012), and Derr v. State, 434 Md. 88, 103, 73 A.3d 254 (2013), we conclude that the autopsy report was testimonial in nature and that Malaska's confrontation rights were satisfied by the supervising [216 Md.App. 500] medical examiner's availability for cross-examination. The trial court did not abuse its discretion in denying Malaska's requested " transferred intent self defense" instruction because the substance of the instruction was addressed in other instructions given by the court. Malaska's contention that the court erred in failing to give a defense of others instructions is not preserved for appellate review. The court did not err in denying Malaska's motion to suppress. We will affirm the conviction.
The State's Case
Liller was fatally shot on March 28, 2012, in the front yard of Malaska's residence. The sequence of events leading to his death had its origins in a property dispute between the Malaskas and their neighbors. Malaska, his son, Michael Malaska (" Michael M." ), and Michael M.'s then-fiancee, Kelly Discher, lived in the Malaska home, which was located in a rural area of Allegany County. Liller and Kelly Spangler, his girlfriend, owned property situated adjacent to the Malaska property, which they used as a horse pasture or paddock. Kelly Spangler's parents, the Robertsons, lived in a home located on the other side of the paddock. Her husband, Michael Spangler, lived in an apartment attached to the Robertson house. The Malaskas, on the one hand, and Kelly Spangler and Dennis Liller, on the other, claimed ownership of a cluster of trees located between the paddock and the Malaska property.
On March 28, 2012, Liller posted a " No Trespassing" sign in the disputed area. When Michael M. and Discher saw the sign, they tore it up and threw the pieces onto the Robertson's [216 Md.App. 501] front lawn. This began a series of heated verbal altercations between the neighbors which culminated in a physical brawl in the Malaska front yard between Liller, Kelly Spangler, and Michael Spangler, on one side, and Michael M., on the other. As the fight was nearing its end, or immediately thereafter, Malaska, while standing on his front porch, fired a shot from a .22 caliber rifle. According
to Kelly Spangler, the shot prompted her to drop to the ground, Liller to run in the opposite direction, and Michael Spangler to take cover behind a tree. Malaska fired at least one additional time and struck Liller in the back as he ran away. The bullet punctured Liller's aorta and he was dead by the time that emergency personnel reached the scene. Discher testified that she heard Malaska say " die, [obscenity deleted], die" after Liller was hit by the bullet.
Appellant's Version of Events
Malaska, who was sixty-nine years old at the time of the incident, testified in his own defense and presented an alternative version of the events. According to Malaska, he was awoken from a nap by the noise emanating from the ongoing brawl in his front yard. He walked to his front door and saw: " Kelly Spangler beating my son with a cane," " Dennis Liller striking my son with his fists in the face," and " Mike Spangler kicking my son in the head." Michael M. was in a sitting position and was " limp," with his " arms down." Malaska retrieved a rifle, exited onto the front porch, and then fired " a warning shot in the air."
According to Malaska, the warning shot prompted Michael Spangler to turn toward him and ask " do you want a piece of this?" Spangler then charged at Malaska. Malaska testified that, " I got scared and I thought things had reversed. I am trying to help my son out and here is this large man coming at me. I was physically scared." As Michael Spangler charged at him, Malaska " pointed the rifle towards him and  fired." (He could not recall the number of times he fired). The shots at Michael Spangler prompted Liller to run toward Kelly Spangler's vehicle, which was parked on a gravel lot adjacent [216 Md.App. 502] to the paddock. Malaska saw Liller fall to the ground, but testified that he did not know he had killed Liller until after he had been arrested and transported to the Cumberland City Police Station.
The Interrogation and The Motion to Suppress
While at the police station, Malaska was read his Miranda rights. He then signed a written waiver of those rights. Thereafter, Malaska was interrogated by Corporal Martin of the Maryland State Police and Detective Dixon of the Allegany County Sheriff's Office. During the interrogation, Malaska stated " maybe I need an attorney" and " possibly I need an attorney." In reply, Corporal Martin explained, " if you want an attorney, no other questions will be asked of you." In response, Malaska expressed his desire to " make a statement right now" and said, " I don't need an attorney yet." Malaska then told the officers about the incident, including that, after firing the warning shot, Liller and certain unidentified others " just stopped and ran" and that he fired the subsequent shots, not out of concern for Michael M., but because Michael Spangler had charged at him and he " was in fear for himself."
Prior to trial, Malaska moved to suppress the statements he made to Corporal Martin and Detective Miller. Malaska asserted that, even though he was read and signed a waiver of his Miranda rights, he had " explicitly invoked his right to counsel" during the interrogation and that, therefore, the officers should have ceased their questioning. The trial court denied the motion, concluding that Malaska had failed to make " an unequivocal request for counsel." We will discuss Malaska's motion, and the trial court's ruling, in greater detail in Part III.
The Autopsy Report
Liller's body was transported to the Office of the Chief Medical Examiner for an
autopsy. The physical dissection of Liller's body was performed by Cassie L. Boggs, M.D., under the supervision of Victor W. Weedn, M.D., J.D., then an assistant medical examiner. The autopsy report concluded [216 Md.App. 503] that Liller died of a gunshot wound to his back and that the manner of death was homicide. The report was signed by Doctors Boggs and Weedn as well as by David R. Fowler, M.D., the Chief Medical Examiner. In discovery, the State disclosed that it intended to call Dr. Weed in as an expert witness to testify about the autopsy report and its conclusions. The State did not identify Dr. Boggs as a possible witness.
Malaska filed a motion in limine asserting that, unless Dr. Boggs testified, admission of the autopsy report or any evidence of its contents would violate his right of confrontation guaranteed by the Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights. The trial court conducted an evidentiary hearing on the motion outside the presence of the jury before Dr. Weedn testified and then denied the motion. Dr. Boggs did not testify. We will discuss the motion in Part I of this opinion.
Malaska was tried before a jury on August 29-31 and September 4, 2012 on charges of second degree murder and voluntary manslaughter. The State's theory was that Malaska, motivated by Liller's role in the ongoing property dispute, intentionally shot and killed him. The State called twelve witnesses to testify, including Kelly Spangler, Michael Spangler, and Kelly Discher, all of whom testified as to their observations during the incident, and Dr. Weedn, who testified, over defense counsel's objection, about the results of Liller's autopsy. Dr. Boggs did not testify. The State also admitted the autopsy report into evidence, along with, among other evidence, Malaska's statement to Corporal Martin and Detective Miller.
Malaska called seven witnesses to testify in his defense. The crux of his defense, as set out in defense counsel's opening statement and closing argument, was that, after Malaska fired the warning shot, Michael Spangler threatened Malaska and charged at him, and that, during the charge, Malaska had, in the words of defense counsel, fired shots at Spangler " in self-defense against Michael Spangler." According [216 Md.App. 504] to the defense, Malaska did not aim at, nor intend to shoot or kill, Liller.
At the close of evidence, defense counsel requested that the trial court instruct the jury as to " self-defense" and " transferred intent self-defense." Malaska points to certain " inaudible" parts of the trial transcript and asserts that defense counsel also asked for an instruction on the " defense of others." The trial court instructed the jury as to self-defense, but not transferred intent self-defense or defense of others. Malaska contends that the trial court abused its discretion by failing to provide the latter two instructions. We will address these contentions in Part II.
After deliberating, the jury convicted Malaska of voluntary manslaughter and acquitted him of second-degree murder. He was sentenced to incarceration for a period of eight years. This appeal followed.
I. The Right of Confrontation
Malaska asserts that the trial court's admission into evidence of Liller's autopsy report, and Dr. Weedn's testimony about the report's contents, violated his right to confront the witnesses against him, as guaranteed by the Sixth Amendment to the United States Constitution ( " the accused shall enjoy . . . the right to be confronted
with the witnesses against him" ), and Article 21 of the Maryland Declaration of Rights (an accused " hath a right . . . to be confronted with the witnesses against him" ). This is so, he continues, because Dr. Weedn neither performed the autopsy dissection nor wrote the report. Asserting that, at most, Dr. Weedn supervised (to some degree) Dr. Boggs' performance of the dissection, and edited, [216 Md.App. 505] approved, and signed the final report, Malaska maintains that, in order to admit evidence concerning the results of the autopsy, the State was required to call Dr. Boggs as a witness.
The confrontation rights set forth in the Sixth Amendment and Article 21 have been read in pari materia --i.e., " as generally providing the same protection to defendants." Derr v. State, 434 Md. 88, 103, 73 A.3d 254 (2013) (" Derr II " ); Cooper v. State, 434 Md. 209, 232, 73 A.3d 1108 (2013). Together, they act to " protect the defendant from the government's use of statements made outside the courtroom as evidence in trial without calling the witness to testify." Green v. State, 199 Md.App. 386, 399, 22 A.3d 941 (2011). These rights apply where: 1) the challenged out-of-court statement or evidence is presented for its truth, and 2) the challenged out-of-court statement or evidence is testimonial--i.e., bears indicia of solemnity. Derr II, 434 Md. at 106-07, 112-13; Cooper, 434 Md. at 233. If these conditions are satisfied, the State is prohibited from introducing the statement unless: 1) the declarant is unavailable to testify as a witness at trial; and 2) the defendant had an opportunity to cross-examine the declarant prior to trial. Derr II, 434 Md. at 107.
Malaska asserts that the autopsy report and Dr. Weedn's testimony about the report were testimonial and introduced for the truth of the matters recounted therein. He argues that, having failed to show that Dr. Boggs was unavailable to testify as a witness at trial and, moreover, having failed to make Dr. Boggs available for cross-examination prior to trial, the State should have been precluded from introducing the report and its contents into evidence. Malaska contends that he suffered prejudice as a result of the admission of this information because the report and its contents: 1) established that Liller died of a gunshot wound to the back, 2) stated that the cause and manner of Liller's death was homicide, and 3) suggested that Malaska testified inaccurately as to certain details about the incident--namely, the timing of when [216 Md.App. 506] Liller fled from the scene.
The State suggests in response that it is " unclear" as to whether the autopsy report and Dr. Weedn's testimony about the contents of the report satisfy the second prong of the Derr II test--i.e., the requirement that they be " testimonial." The State contends, alternatively, that, even if Malaska's confrontation right was implicated by the admission of the autopsy report and its contents, it was not violated because Dr. Weedn testified and was subjected to cross-examination at trial. In support of its latter point, the State argues that, as the supervising medical ...