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Ford v. State

Court of Appeals of Maryland

October 26, 2018


          Argued: September 13, 2018

          Circuit Court for Anne Arundel County Case No. C-02-CR-15-000033

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


          WATTS, J.

         This case concerns two issues involving the admissibility of evidence in a murder trial. First, we consider admissibility of character evidence of the victim under Maryland Rule 5-404(a)(2)(C), which provides: "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." Here, the trial court, over defense counsel's objections, permitted the State, Respondent, to present evidence of the alleged victim's trait of peacefulness in its case-in-chief during direct-examination of two State's witnesses to rebut remarks made by defense counsel in opening statement that the defendant was not the aggressor and had acted in self-defense.

         The second issue concerns the admissibility of evidence of the defendant's post-crime conduct as consciousness of guilt, and specifically, the determination that such evidence was relevant and that the danger of unfair prejudice or considerations of cumulativeness did not substantially outweigh the probative value of the evidence. Here, evidence was adduced at trial that, after stabbing the victim, the defendant fled to his ex-girlfriend's home. Over objection, the trial court permitted the State to elicit testimony from the defendant's ex-girlfriend that, the morning following commission of the crime, she asked him to leave, and the defendant cursed at her, slammed the front door, and left. The trial court admitted evidence of the defendant's reaction to being told that he had to leave his ex-girlfriend's home as evidence of consciousness of guilt.

         As to the first issue, we hold that Maryland Rule 5-404(a)(2)(C) does not permit a prosecutor to offer evidence of an alleged victim's trait of peacefulness to rebut statements made by defense counsel in opening statement because opening statements are not evidence, and Maryland Rule 5-404(a)(2)(C) specifically requires that "evidence that the victim was the first aggressor" be introduced before the prosecutor may rebut such evidence with "evidence of the alleged victim's trait of peacefulness[.]" (Emphasis added). Moreover, we hold that defense counsel's remarks during opening statement did not "open the door" for the prosecutor to present evidence of the alleged victim's trait of peacefulness. This is so because, even if defense counsel's remarks placed the victim's actions and character at issue and somehow indicated that the defendant would perhaps offer evidence to prove that the victim was the aggressor, Maryland Rule 5-404(a)(2)(C) definitively requires evidence that the victim was the first aggressor-not merely a statement indicating that some evidence might possibly be introduced-to trigger the State's ability to rebut with evidence of the victim's trait of peacefulness. Accordingly, the trial court erred in concluding that defense counsel had "opened the door" for the State to present evidence of the victim's trait of peacefulness under Maryland Rule 5-404(a)(2)(C), and in permitting the State, over objection, to elicit testimony in its case-in-chief from State's witnesses that the victim was a "quiet, nice person[, n]ice to everybody[, ]" and "a cool person[, h]e was never, you know nasty or hostile, or anything." Nevertheless, we hold that the error was harmless beyond a reasonable doubt.

         As to the second issue, we hold that the trial court properly permitted the defendant's ex-girlfriend to testify about the defendant's behavior and reaction to being told that he had to leave her home-specifically, that he "cursed [her] out, and he slammed back the front door and left"-as evidence of consciousness of guilt. We conclude that the trial court did not err in determining that this evidence of the defendant's post-crime conduct was relevant to the defendant's guilty state of mind-specifically, that he was staying at his ex-girlfriend's home to hide from law enforcement and did not want to leave because he wanted to continue hiding out and elude capture. Additionally, we conclude that the trial court did not abuse its discretion in concluding that the danger of unfair prejudice or considerations of cumulative evidence did not substantially outweigh the probative value of the evidence.


         On August 7, 2015, in the Circuit Court for Anne Arundel County, a grand jury indicted David Leander Ford, Petitioner, for first-degree premeditated murder, second-degree murder, manslaughter, and carrying a weapon openly with the intent to injure. The charges arose out of an incident that occurred on the evening of July 8, 2015, during which Ford allegedly engaged in an altercation with Mohamed Bashir Eltahir and fatally stabbed him.

         From September 19 to 22, 2016, the circuit court conducted a jury trial. At the start of trial, the prosecutor nol prossed the charge of first-degree premeditated murder. Also, at the start of trial, Ford's counsel moved in limine to exclude evidence that Ford had a "temper." The prosecutor requested that the circuit court reserve ruling on the matter to "see how the trial plays out before [] mak[ing] an ultimate ruling on whether that evidence becomes relevant[.]" The circuit court agreed with the prosecutor and stated that it would "reserve on the issue of [Ford] ha[ving] a temper."

         During the State's opening remarks, the prosecutor set forth the State's theory of the case, positing that Ford instigated a verbal argument with Eltahir, and was responsible both for escalating the argument to a physical altercation and for subsequently introducing a knife into the physical altercation. Specifically, the prosecutor stated as follows. On the evening of July 8, 2015, Eltahir and his friend, Everett Kane, purchased alcoholic beverages, and took the drinks and sat on a park bench together. According to the prosecutor, Eltahir was "relaxed" and "enjoying himself." Others joined the two men, including Ford, who "made a crude comment about" a woman walking by, equating her to Eltahir's sister. Eltahir asked Ford to stop. Ford declined to stop and instead escalated the verbal exchange by jumping off the park bench, continuing to swear, and "get[ting] into [Eltahir]'s face." In response, Eltahir stood and "argued right back." Others tried to defuse the situation, but the two men continued to argue until Ford swung his fist and struck Eltahir in the chest. According to the prosecutor, Ford "was the first one to make th[e] argument physical." Ford kept hitting Eltahir, but Eltahir "finally got a hit in too, and he knocked [Ford] down to the ground." When Ford stood up, others saw him stab Eltahir in the chest with a knife. According to the prosecutor, the "knife went straight into [Eltahir]'s chest, and into his heart[, ]" and he died shortly thereafter. Ford fled the scene, eventually going to the home of Sheila Brown, his ex-girlfriend, whom he told that he had "cut a boy."

         Ford's theory of the case was that he acted in self-defense. During Ford's opening statement, his counsel posited that, although Ford insulted Eltahir, Eltahir was younger, bigger, faster, and stronger than Ford, and Eltahir was the aggressor who initiated physical contact. Specifically, Ford's counsel stated:

He had a choice to defend himself or he had a choice to get badly injured, perhaps even killed.
What [] Ford chose to do that night was to defend himself. . . .
[Eltahir] is a security guard, he was drinking that night. [Yo]u are going to hear evidence that [Eltahir] is younger than [] Ford, faster than [] Ford, bigger than [] Ford, and stronger than [] Ford. And [] Ford is not the person [who] initiates any physical contact, that's [Eltahir].
So [] Ford finds himself being attacked by someone that's larger, someone that's stronger, someone that's faster, and someone that's bigger. And [] Ford makes a choice to defend himself. [] Ford is forced to react. The only goal that [] 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 that's presented before you make a decision and you'll realize that [] Ford was in a situation where he was overmatched. 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. And most importantly he had a reasonable belief that he was in [im]minent danger. And he had that belief because he was. He was in [im]minent danger. He was forced to react and he had absolutely no intent to kill him.

         At the close of opening remarks, the prosecutor requested a brief bench conference. At the bench conference, the prosecutor argued that Ford's counsel's assertion that Eltahir was the aggressor "opened the door" for the State to introduce evidence "about whether [Ford] has a temper or not," and "general evidence about" Ford's character for peacefulness or aggressiveness. According to the prosecutor, Eltahir's "nature for peacefulness [was] fair game at th[at] point, and because [the defense was] claiming self-defense, [Ford]'s nature bec[a]me[] fair game." Ford's counsel objected. After hearing argument from the parties, at this point, the circuit court ruled that Ford's counsel's statements during opening remarks had not opened the door "sufficiently" for the State "to use it in [its] case[-]in[-]chief."

         As the first witness for the State, Barbara McQueen testified that she knew Eltahir for approximately six months and that she saw him "[a]lmost every day." The following exchange occurred concerning McQueen's knowledge of Eltahir:

[PROSECUTOR:] Okay, and how about his demeanor, his personality?
[MCQUEEN:] Quiet, just overall a nice person.
[PROSECUTOR:] Okay. Did you have occasion to observe his peacefulness?
[FORD'S COUNSEL]: Objection.
THE COURT: Rephrase counsel.
[PROSECUTOR:] Did you have occasion to observe his nature with regards -- his, his nature I guess.
[FORD'S COUNSEL]: Objection.
THE COURT: Overruled.
[PROSECUTOR:] Were you able to observe his demeanor and nature?
[MCQUEEN:] Was quiet, nice person. Nice to everybody.
[PROSECUTOR:] Did you see, observe whether he would get angry easily, or if it would take a lot to get him angry?
[FORD'S COUNSEL]: Objection.
THE COURT: Rephrase Counsel, sustained.
[PROSECUTOR:] Did you have [the] ability to observe his character towards peacefulness or aggressiveness?
[FORD'S COUNSEL]: Same objection.
THE COURT: Sustained, rephrase Counsel.
[PROSECUTOR:] In your contact, did you ever have [the] opportunity --okay. Did you -- were you able -- aware of his reputation for peacefulness or aggression[?]
[FORD'S COUNSEL]: Objection.
THE COURT: Overruled.
[PROSECUTOR:] Were you aware of his reputation for peacefulness or aggressi[on]?
[PROSECUTOR:] And what was that reputation?
[MCQUEEN:] We would sit on the bench and talk, and we went to restaurants and ate with him.

         McQueen testified that, on the evening of July 8, 2015, she and her friend Katherine Platter went to the park near her apartment complex, where Eltahir and Kane were sitting on a park bench drinking. Eltahir was not drunk or slurring his speech, and was acting "[q]uiet and nice as usual." At some point, Ford arrived carrying "two or three [shopping] bags[, ]" which he put down at the end of the walkway before he sat on the park bench with Eltahir and Kane. McQueen testified that two women walked by, and described how an argument began between Ford and Eltahir:

[Ford] said, "Man I want to (expletive) your sister, he say, I wrap her hair around her head, and I want to (expletive) your sister". And [Eltahir] said, "Man what are you talking about". And [Ford] leaned over and said, "What, you don't understand what the (expletive) I'm saying?" He said, "I said I want to (expletive) your sister". So then, that's how the argument started.

         McQueen testified that, following this verbal exchange, Ford stood up and "got in [Eltahir]'s face." Eltahir also stood up, and Platter "jumped up, and [] got in between [Ford] and [Eltahir], and started pushing them apart." Ford hit Eltahir, who stumbled back; according to McQueen, Ford hitting Eltahir was the first physical contact made during the altercation. Eltahir then hit Ford, who "fell back on his knees." Ford got back up and hit Eltahir in the chest. McQueen saw Ford hit Eltahir "about four times" and saw Eltahir hit Ford only once. After Ford hit Eltahir in the chest, Platter told Eltahir to sit down, and as Eltahir began to sit, he told Ford: "Since you say (expletive) my sister, (expletive) your mother[.]" Ford started "hitting" Eltahir again, and when Eltahir sat down, McQueen saw blood. Ford told Kane to grab his grocery bags, and then both men ran. As Ford passed by McQueen, "[h]e had [a] knife in his hand, and he had blood running down his arm."

         Subsequently, McQueen telephoned 911. Law enforcement officers responded to the 911 call and McQueen was interviewed by detectives. Detectives showed McQueen a photographic array, and she identified Ford as the person who stabbed Eltahir. McQueen acknowledged telling detectives that she was "about fifty percent sure[, ]" but testified that there was no doubt in her mind that Ford stabbed Eltahir, and she identified Ford in the courtroom.

         On cross-examination, McQueen acknowledged telling law enforcement officers the following in an interview: "And then after that, I basically really couldn't see too much, because [Platter] was, big as she is, was standing up there, and then when she turned around, that's when we saw all the blood[.]" Later on cross-examination, though, McQueen testified that she "did see" Ford stab Eltahir. Ford's counsel also asked McQueen to describe Eltahir's reaction to Ford's comment that he wanted to "(expletive) [Eltahir's] sister[, ]" and McQueen acknowledged that Eltahir did not react well, but denied that Eltahir became "visibly angry[.]" On redirect, McQueen testified that there was no blood on Eltahir's shirt when he arrived at the park bench, and that Ford was the only person to make physical contact with Eltahir's chest.

         As a witness for the State, Kane testified that, as of July 2015, he had known Eltahir for approximately six months, and they were "close friends." The prosecutor asked Kane to describe Eltahir, and Kane testified: "He was a, you know, quiet, you know, quiet person. You know, we always sat and talked. . . . And he was never, you know, hostile or anything." Ford's counsel objected, and the circuit court sustained the objection. The prosecutor asked to approach, and at a bench conference, stated that she was seeking Kane's opinion as to "Eltahir's character for peacefulness." The circuit court stated that it had sustained the objection because of "[t]he context of the question." Ford's counsel argued that a proper foundation had not been laid. The following exchange occurred:

[PROSECUTOR:] They said that the victim was the aggressor, in that, that their client wasn't the aggressor. That their client -- I'm not asking about his character at this point, it's the victim's character. . . . And I believe that in opening, when they throw the issue down that my person was the aggressor, that I am able at that point, under that rule to rebut it. They said that their client only reacted out of fear. That . . . [the] victim was the aggressor. That he was only defending himself.
THE COURT: You did say that, counsel. . . . In your opening.
[FORD'S COUNSEL]: Well, . . . the issue though, is . . . that's not evidence. And as far as the state of the evidence goes, there is nothing to rebut as of yet.
THE COURT: . . . [T]he Court did not rule that you had opened the door for purposes of those discussions, as they related to [Ford.]
In this particular case, you painted the victim as the faster, bigger, stronger, struggle that he was not -- your client was not the aggressor that the other fellow was. And his responses were out of scare [sic], and reaction, and the fear[.]
* * *
[FORD'S COUNSEL]: Right, but . . . there was no statement in the opening that [] Eltahir was an angry -- or that he was (inaudible few words). It's much more a description of his physical -- it's not about his peace --
THE COURT: You said your client acted out of fear because the other fellow was the aggressor. . . . The prosecution may offer evidence of his traits for peacefulness. And the evidence in this case, although not evidence in the traditional sense, . . . you have, however, opened the door and she may present testimony that the victim, in this case, was of a peaceful nature. That's what the testimony is going to be.
Or testimony that would rebut [] your opening about his aggressiveness.

         After the bench conference, the prosecutor asked Kane about his opinion as to Eltahir's peacefulness during the following exchange:

[PROSECUTOR: D]id you have an opportunity to -- so you talked about how you interacted with [Eltahir], did you have an opportunity to see him interact with other people?
[KANE:] Yes.
[PROSECUTOR:] Okay, and based on what you saw with his interactions with other people, and how [h]e was with you, did you form an opinion as to [Eltahir]'s peacefulness?
[KANE:] Yes.
[PROSECUTOR]: And what was that opinion?
[KANE:] He was --
[FORD'S COUNSEL]: Same objection, Your Honor.
THE COURT: Overruled.
[KANE:] He was a cool person. He was never, you know nasty or hostile, or anything.

         Kane testified that, on the evening of July 8, 2015, he and Eltahir picked up some beer from a liquor store and then sat on a park bench; Eltahir also had some liquor. McQueen and Platter joined them. Eltahir did not appear drunk, and was not slurring his words or stumbling. At some point, Ford arrived with groceries, which he put down on the sidewalk before sitting down on the bench. Ford sat down next to Kane and began talking to Eltahir. Ford told Eltahir "I want to (expletive) your sister[, ]" which caused Kane to get up and move because Eltahir did not "really like you talking about his family[.]" Kane testified that, when someone talked about Eltahir's family, Eltahir would "get mad. He wasn't getting like, you know, mad, mad, like that. He would just, you know, be upset."

         After Kane got up and moved, he walked back and forth because he "was a little tipsy[, ]" and Ford and Eltahir were "arguing back and forth, or talking back and forth." At some point, Ford and Eltahir stood up, and Platter stepped between them, "trying to stop them from fighting or whatever they w[ere] getting ready to do." Kane saw Ford and Eltahir "pushing each other back and forth[, ]" but he did not see "who pushed who first" because he had his back turned. At some point thereafter, Kane saw blood on Eltahir's shirt. There had not been blood on Eltahir's shirt before the physical altercation with Ford, and nobody other than Ford had touched Eltahir. After Kane noticed that Eltahir was bleeding, Ford "told [Kane] to take his bags to" someone named Dewey, so he "grabbed [Ford's] bags, and [Ford] was already walking away." Kane took the bags to Dewey's home and then returned to the bench. Kane saw a scratch on Ford's arm, but he did not see any weapons on Eltahir.

         Law enforcement officers interviewed Kane, who initially falsely said that he did not see anything and that he was not present during the altercation. According to Kane, he "didn't want to be there" or "be involved" because he was on probation for "stealing" and had "a couple of convictions for stealing[.]" After Kane learned that Eltahir died, however, he told the officers the truth. The officers showed a photograph array to Kane, who identified Ford as the person who stabbed Eltahir. Kane told officers that he was "a hundred percent" sure about his identification of Ford. Kane also identified Ford in court.

         On cross-examination, Ford's counsel questioned Kane about Eltahir's reaction to Ford's statement about Eltahir's sister. Kane testified that Eltahir became upset, and that Eltahir and Ford eventually started "pushing back and forth." Kane denied, however, that Eltahir "jump[ed] up" or "lunged at [] Ford[.]"

         As a witness for the State, Brown testified that she used to date Ford, but they had broken up approximately seven or eight months before July 2015. On the evening of July 8, 2015, Ford arrived at Brown's home unannounced, and asked Brown for a favor. Ford asked if he could stay at Brown's home "for a while because he said that he had got[ten] into a confrontation with a friend of his, or something. And the friend hit him in his head, and he stabbed him." Brown asked Ford why he did not wait for law enforcement, and Ford replied that "he was afraid, he didn't want to get into that[, ]" and that he "was scared" of "[t]he police with all the drama with -- because the guy had hit him first, or something, and he had stabbed him." Ford told Brown that he had learned that Eltahir had died. Ford also told Brown that he had made a comment to Eltahir about "having sex with" Eltahir's sister.

         Ford told Brown that he had first stopped at his mother's house and "that's where he left the knife . . . [t]hat he had stabbed the boy with." Ford told Brown that he had left the knife "with the shed, behind the shed, or something" at his mother's house. Brown saw "a gash on [Ford]'s arm" and used peroxide and ointment on it. Ford told Brown that Eltahir had "stabbed him there[, ]" although Ford did not say that he saw Eltahir with a knife-only that "they was struggling around." When Brown suggested that Ford go to a hospital, Ford "said no . . . [b]ecause they [were] going to lock him up."

         The following morning, Brown advised Ford that he could not stay at her home and "that he had to go." The prosecutor then asked Brown: "What was [Ford's] reaction when you told him he could not stay?" Ford's counsel objected, and the circuit court initiated a bench conference, at which Ford's counsel argued that Ford's reaction was "completely irrelevant" and "more prejudicial than probative." The prosecutor responded that Ford's reaction went "to consciousness of guilt. He's wanting [Brown] to allow him to stay there, so that he can hide." The prosecutor explained:

Consciousness of guilt, his reaction, you are not allowed to stay here, you have to get out, and he's very angry at her for doing that. I think it goes to -- I think it's probative as to how he's acting and conducting himself after this. He's running, he's ...

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