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State v. Hines

Court of Appeals of Maryland

November 10, 2016


          Argued: September 8, 2016

         Circuit Court for Baltimore City Case No. 113044019-22

          Barbera, C.J. Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.


          GREENE, J.

         This 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.


         On 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.

         On the 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.

         Later 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.[1] Evidence was also admitted at trial that established Hines' address was 301 Lyndhurst Avenue.

         Motion to Sever

         Hines 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. Hines.
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 it--
THE COURT: Do they, at that point when they interview Mr. --
MR. NASH [Prosecutor]: They know it's Tevin Hines, Your Honor.
THE COURT: --Allen, they know who Hines is?
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 separate trial[.]
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, is unfair.

(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 other.
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 together.

(emphasis added).

         There is no dispute that the statement would have been inadmissible hearsay in a trial had Hines been tried separately from Allen.[2] 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 Hines.[3]

         Statement Admitted in the State's Case in Chief

         The following portions of Allen's statement were admitted in the State's case in chief and played at trial for the jury:

DETECTIVE CAREW: Okay. All right. So you're saying that you did not leave your house until 12:00 noon?
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 attention.
* * *
DETECTIVE CAREW: All right. So what time did you get to that house, the studio at the ...

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