Argued: September 13, 2018
Circuit Court for Anne Arundel County Case No.
Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten,
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
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
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.
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.
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.
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."
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."
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
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.
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
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
[PROSECUTOR:] Okay, and how about his demeanor, his
[MCQUEEN:] Quiet, just overall a nice person.
[PROSECUTOR:] Okay. Did you have occasion to observe his
[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
[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.
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.
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."
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.
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
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
[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
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
* * *
[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
the bench conference, the prosecutor asked Kane about his
opinion as to Eltahir's peacefulness during the following
[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?
[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?
[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.
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."
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.
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.
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 
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
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."
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 ...