Argued: September 8, 2016
Court for Baltimore City Case No. 113044019-22
Barbera, C.J. Greene, Adkins, McDonald, Watts, Hotten, Getty,
case involves a joint criminal trial of two codefendants. The
Circuit Court for Baltimore City denied Respondent Tevin
Hines' motion for a severance in the trial of State v.
Dorrien Allen ("Allen") and Tevin Hines
("Hines"). Hines argues that this was error because
he was prejudiced by the admission into evidence of a
statement made by Allen, which was inadmissible against
Hines. At issue in this case is a question that this Court
has never squarely addressed: the application of the offense
joinder analysis set forth in McKnight v. State, 280
Md. 604, 612, 375 A.2d 551, 556 (1977) in the context of
defendant joinder. We agree with Petitioner, the State of
Maryland, that generally, where most of the evidence
admissible at trial is mutually admissible, a joinder of
defendants will be proper. However, where joinder will result
in prejudice to one or more defendants, a trial judge has
discretion under Maryland Rule 4-253 to grant a severance or
order other relief as justice requires. Here, where
non-mutually admissible evidence was actually admitted during
a joint jury trial of codefendants and from the admission of
that evidence, the objecting defendant was prejudiced, the
trial judge abused his discretion in denying a severance.
Because the statement that is inadmissible against Hines
implicated him and therefore caused him to suffer unfair
prejudice from the joinder, the trial court committed
reversible error in denying the motion for severance and a
new trial is warranted.
AND PROCEDURAL BACKGROUND
January 15, 2013, Brandon Gadsby and Michelle Adrian drove
from Frederick County to Baltimore City to purchase heroin.
Gadsby drove down Edmondson Avenue and the surrounding
residential streets of West Baltimore until two young men,
one in an orange jacket and another in a black beanie, waived
Gadsby down. Gadsby later identified the men as Dorrien Allen
and Tevin Hines. Gadsby testified that he pulled his truck
over to the side of the street and Hines and Allen approached
the vehicle and asked Gadsby, "Boy or Girl" meaning
heroin or cocaine. Gadsby indicated that he wished to
purchase heroin. According to Gadsby, Hines told Allen that
he would meet him "over" there. Allen then got into
Gadsby's vehicle and directed Gadsby to the 3900 block of
Mulberry Street. When Gadsby parked his vehicle in a lot
adjacent to a cemetery, Allen exited the vehicle and
disappeared from view into a nearby alley. Allen then
returned with Hines, but Hines remained in the alley while
Allen walked over to Gadsby's vehicle. Gadsby testified
to hearing Hines tell Allen, "not yet, not yet",
apparently referring to the fact that a garbage worker was
nearby. After the garbage worker was out of sight, Allen
pulled out a handgun and said, "don't fuckin'
move." Gadsby testified that he reached for his keys to
start his truck and that Allen said, "are you trying to
die?", and then fired a gunshot that shattered the
driver's side window. Gadsby said he then held out the
$120 he intended to use to purchase heroin and told Allen to
take whatever he wanted. Allen grabbed the money, exited the
vehicle, and fired his gun multiple times, wounding Gadsby
and killing Adrian. Gadsby testified that Allen fled through
a hole in the cemetery fence.
same day as the shooting, Officer Kevin McLean of the
Baltimore City Police Department was patrolling the area and
saw Allen and Hines at the Normandy Food Market at
approximately 9:30 a.m. Allen was wearing a bright orange
jacket and Hines was dressed in black. Officer McLean was
familiar with Allen and Hines based on his experience
patrolling that area. About twenty minutes later, Officer
McLean drove to a nearby convenience store and saw Allen and
Hines. At 10:47 a.m., Officer McLean received a radio call
reporting a shooting one block from Normandy Market and two
blocks from the convenience store. Officer McLean responded
to the scene whereupon Gadsby told Officer McLean he was shot
by a black male wearing an orange jacket and blue jeans.
Based on this information and on the fact that Officer McLean
had seen Allen in the area earlier, he radioed that Dorrien
Allen was a possible suspect.
on the same day, police saw Allen on the street and detained
him for questioning. Allen was questioned by Detectives
Fuller and Carew. This interview was recorded and offered as
evidence by the State at trial. In the statement, Allen told
police that on the day of the shooting, he remained home
until around midday when he went to record a music video at
his friend "Mike's" house. According to
Allen's statement to the police, he did not know
"Mike's" real name. Allen told police that
"Mike" lives on the 300 block of Lyndhurst Avenue.
The detectives then showed Allen a surveillance video of
Allen at the convenience store during the time at which he
claimed to have been home. The video, which was also shown to
the jury at trial, shows Allen with a man who is clearly
Hines. Allen admitted to detectives that he was in the video
but claimed to not know who Hines was. Throughout the
recorded interview, the detectives made statements of
disbelief as to Allen's version of the events that took
place on that day. Evidence was also admitted at trial that
established Hines' address was 301 Lyndhurst Avenue.
made a pretrial motion for severance, arguing that
introduction of Allen's recorded statement would
prejudice Hines. At the pretrial motions hearing, counsel for
Hines articulated to the trial judge the exact prejudice that
would-and did-ensue from the admission of Allen's
statement at a joint trial:
MR. SMITH [Defense Counsel]: Your Honor, I think that Mr.
Hines' case should be severed partially because of the
statement . . . the main part of the statement is, all of the
commentary by the detectives about what they know, accusing
Mr. Allen of you're lying, we know you're lying, we
know about this other person that you're with, you're
lying about the name of the other person that you're
with, Mr. Allen saying his name is Mike. All of the
commentary that we go through in this lengthy statement, and
Mr. Allen's responses, however you want to characterize
them, I don't think are at all admissible against Mr.
The other issue is I don't anticipate any ability to
cross-examine Mr. Allen about any of his answers much less
the ones regarding the accusations made by the detectives, we
know you're lying Mr. Allen, we know that you're not
telling us about the other person, we know who that other
person is, that implication there, and we know you're
lying about it, and it's not Mike and we know who it is.
Well, the only inference that can be drawn at that point is
that it's Mr. Hines and that Mr. Allen is lying about
THE COURT: Do they, at that point when they interview Mr. --
MR. NASH [Prosecutor]: They know it's Tevin Hines, Your
THE COURT: --Allen, they know who Hines is?
MR. SMITH: Yes.
MR. NASH: Yes.
MR. SMITH: They're trying to get him to say it's
Tevin Hines, isn't it, and he's saying no, it's
Mike, I don't know, I don't wear an orange jacket.
THE COURT: I am amazed they didn't say but we know that
[sic] Tevin Hines. I'm surprised, I was really
interpreting it the other way.
MR. SMITH: No, they knew who they -- they had seen the video
from whatever, the first store, you heard them talk about the
9:25 or whatever time it was where they were asking Mr.
Allen, we know you couldn't have gotten up at noon
because we saw you at the store at 9:25 and we saw you with
the other guy and we know who that other guy is, and they
know who it was, and they were trying to get him to say
it's Tevin Hines, and they're trying to get him to
say all that and that's why in this situation, Your
Honor, I understand it's not -- they didn't use the
word Tevin Hines, but the testimony of Mr. Gadsby in this
case that will come out, is that there were only two people
involved at the drug deal. This wasn't something you can
sanitize and say well, maybe they won't, maybe they will
just think that there was nobody else, okay, maybe you can
sanitize this statement, I don't think you really can
with it making any sense whatsoever for the remaining
parties, or the whole implication in this commentary by the
detectives which is the problem with not just asking
questions, making all of this commentary of we know
you're lying we know more than this, we know these
answers to these questions. All of that when I don't get
to ask Mr. Allen any questions, I don't get to really
cross-examine, you know, fully this statement and then have
to say well, ladies and gentlemen, that has -- the Court has
to then say well, ladies and gentlemen, only use those
accusations of lying against Mr. Allen and only use these
little bits of answers against Mr. Allen, and don't
consider that as to Mr. Hines. I think Your Honor is [sic]
very dangerous and doesn't give Mr. Hines the ability to
have full and fair cross examination, confrontation, and a
full and fair trial.
And I think the way to cure that, obviously, is to sever his
case because then we wouldn't play Mr. Allen's
statement at all, it wouldn't be relevant, and it
certainly wouldn't be admissible against Mr. Hines in a
THE COURT: Nothing in the statements the police made to Mr.
Allen suggests that there's a second person involved in
the crime, do they?
MR. SMITH: Yes, they do. They don't come out and say we
know that there was a lookout, but the point is, Judge, the
jury is going to get to hear all of that in the trial and
they're going to say okay, now, let's play Mr.
Allen's statement and the inference is going to be
obviously all of these accusations are going to be well, that
was Mr. Allen doing whatever, lying, not being honest,
whatever word you want to use, and trying to hide the fact
that the police who they believe it is Mr. Hines, is the
co-perpetrator of all of these events that happened in the
back alley of 3900. And it's not simple -- the bigger, to
me, one of the biggest problem [sic] is it's not a
question and answer scenario and there's all of these
accusations against Mr. Allen but they are essentially
imputed in a way to [sic] it's got to be Hines, we know
who it is, it's got to be the co-defendant. Because
they're not going to hear that there were three people
involved other places, or four people, maybe it could have
been somebody else that Mr. Allen is talking about. It can
only be Mr. Hines that is being talked about because
that's who they were trying to get him to talk about at
the time. And I think it's just impossible to parse out
anything from this statement that is mutually admissible, and
I think the safer and more fair way to proceed is to allow
the State to use whatever they choose to use and Mr. Scott
and the State and the Court decide the appropriate redacted
statement as to Mr. Allen in his trial.
But to have and allow and essentially force Mr. Hines to have
to sit here, not be able to cross-examine Mr. Allen about it,
(emphasis added). In response to defense counsel's motion
for severance, the prosecutor made the following argument at
the motions hearing:
MR. NASH: Your Honor, so when we are talking about a
severance, it's under Rule, I am sorry, 4-253(a),
appealing to case law, Stevenson 43 Md.App. 120, joinder
dictates -- is dictated when most of the evidence at trial is
admissible. In this case, almost all the evidence, all the
witnesses are going to be the same. So what we're talking
about, it sounds like counsel brought up two issues, hearsay
and 6th and the 14th amendment, confrontation issue. Hearsay
is not a reason to sever. Now, what we commonly refer to as
Bruton can be, but we have to have a Bruton issues [sic], in
other words, we have to have a statement that expressly
identifies the defendant as the -- or the co-defendant as
engaging in criminal conduct and frankly, Your Honor, we
don't have that here.
So let's start with the argument that while there's
other evidence in the case and if they take some things said
in the statement, then they can link it to other evidence in
the case and figure out that at times. Well, if we look at
Richardson v. Marsh, that's 21 U.S. 200, in a statement
where the co-defendant doesn't name the defendant, even
though there might be evidence in the confession, that's
linked to other evidence in the trial, that's what
Richardson v. Marsh says, that that is not reason to sever
due to confrontation.
The bigger problem with counsel's argument is, is that
the defendant, Mr. Allen, never says anywhere in any part of
the statement, anything that implicates Mr. Hines and
that's exactly what Bruton is supposed to protect one
from. Even if we were to go out on a limb and say that
there's something that the detective said, which clearly
isn't -- wouldn't be accurate either, because they
never mentioned Mr. Hines [sic] name, but even if it was
something the detective said, well, the detective can take
the stand and they can cross-examine the detective. But Mr.
Allen never says anything even remotely linking Mr. Hines to
the crime. As a matter of fact, he's trying to save Mr.
Hines and repeats over and over again, I don't know who
you're talking about, what you're talking about, I
don't know that guy. The closest we get is that I got
some change from him or he gave me some change, one or the
So, Your Honor, there is no reason to sever, there's no
confrontation issue, but even if there were, the case law
would -- there is some of the case law that says that if Your
Honor finds something (inaudible) in the confession of Mr.
Allen that Your Honor has decided, even though (inaudible)
could -- should be kept out, we can simply redact that and we
can move on with the case, with the co-defendants tried
is no dispute that the statement would have been inadmissible
hearsay in a trial had Hines been tried separately from
Allen. However, the parties were in disagreement
as to whether the statement would prejudice Hines. The trial
court ruled that part of Allen's statement was admissible
and denied the motion, stating "All right. If those
matters were taken out, I don't think that the statement
can even inferentially be pointing a finger at Mr. Hicks
[sic] and I would deny the motion for severance." The
trial judge admitted the statement, subject to a limiting
instruction to the jury that the statement was only evidence
against Allen and was not to be considered against
Admitted in the State's Case in Chief
following portions of Allen's statement were admitted in
the State's case in chief and played at trial for the
DETECTIVE CAREW: Okay. All right. So you're saying that
you did not leave your house until 12:00 noon?
MR. ALLEN: Yes.
DETECTIVE CAREW: Okay. Where did you go?
MR. ALLEN: I went to the studio.
DETECTIVE CAREW: You went right to the studio?
MR. ALLEN: Yeah, I had in my mind I was going there, so I was
ready to hit.
DETECTIVE CAREW: You went right from 639 Yale Avenue [Dorrien
Allen's residence] right to --
MR. ALLEN: Lyndhurst.
DETECTIVE CAREW: To Lyndhurst. What address on Lyndhurst?
MR. ALLEN: I don't know the address on Lyndhurst, I know
it's like the 300 block.
DETECTIVE CAREW: 300 block of Lyndhurst. And who lives there?
MR. ALLEN: I know Mike live there and like I know he probably
got the rest of the family household, I don't really pay
* * *
DETECTIVE CAREW: All right. So what time did you get to that
house, the studio at the ...