Argued: January 3, 2019
Circuit Court for Baltimore City Case Nos. 114296017
Barbera, C.J., Greene, McDonald, Watts, Hotten, Getty,
Cathell, Dale R. (Senior Judge, Specially Assigned) JJ.
present case, we consider whether a comment made by defense
counsel in an opening statement invited the State to present,
as evidence, a statement made by Respondent Nicholas Heath
("Mr. Heath") indicating his intention to sell
cocaine. The State urges us to apply the opening the door
doctrine to the facts of the present case, and hold that
defense counsel, through her opening statement, opened the
door to admitting, as evidence, Mr. Heath's stated
intention. To resolve this issue we explore whether defense
counsel's remarks triggered the opening the door
doctrine, and if so, whether the responsive evidence offered
by the State was a proportional response. For reasons we
shall explain, we hold that the trial court erred in
admitting irrelevant evidence and abused its discretion in
weighing the proportionality of the contested portion of Mr.
Heath's statement. The error in doing so was not
harmless; thus, we affirm the judgment of the Court of
& PROCEDURAL BACKGROUND
Heath was charged with the murder of Tom Malenski ("Mr.
Malenski") and the attempted murder of Martin Clay
("Mr. Clay"). The charges stemmed from an
altercation that happened on September 25, 2014 at Ottobar,
where Mr. Malenski and Mr. Clay were employed, in Baltimore
City. The undisputed facts are that on the evening of
September 25, 2014, Dustin Cunningham ("Mr.
Cunningham") directed inappropriate comments toward
Erica Davis ("Ms. Davis") and Ms. Davis's
unidentified friend. Mr. Heath, in an attempt to quell any
hostility between Mr. Cunningham and Ms. Davis, offered an
apology to Ms. Davis and her friend on Mr. Cunningham's
behalf. Ms. Davis did not accept the apology. She, instead,
directed Mr. Heath to inform Mr. Cunningham that he needed to
apologize himself for the comments that he had made.
after continued antagonism between the individuals, the
bouncers removed Mr. Cunningham from the bar. Both Mr. Clay
and Mr. Malenski aided the bouncers in removing Mr.
Cunningham. Mr. Malenski was not working at Ottobar that
night and Mr. Clay had gotten off of work at 11:00 p.m., but
each were "hanging out" at Ottobar at the time of
the altercation. Mr. Cunningham claimed that, once outside,
the bouncers attempted to beat him up, so he ran away. Mr.
Clay and Mr. Malenski ran down the street after Mr.
Cunningham, but he successfully escaped. Thereafter, Mr. Clay
and Mr. Heath offered conflicting stories as to what
to Mr. Clay, while he and Mr. Malenski were walking back to
Ottobar, Mr. Heath came towards them with a knife. At first,
Mr. Clay thought that Mr. Heath had punched him in the face,
but he ultimately realized that he had been cut. Mr. Clay
testified that, while Mr. Malenski was trying to "get in
between" Mr. Clay and Mr. Heath, Mr. Heath slashed Mr.
a different version of the events, Mr. Heath, in his recorded
statement to the police, indicated that upon leaving Ottobar,
he headed in the direction of where Mr. Cunningham had fled.
According to Mr. Heath, the men who had chased Mr.
Cunningham, including Mr. Clay and Mr. Malenski, were walking
back toward Ottobar. The group of men approached Mr. Heath
while he was trying to pass them. Mr. Heath's path was
blocked, and the men began arguing with him. Mr. Heath
claimed that he saw Mr. Malenski pull out a knife. Mr. Heath,
in trying to defend himself from an attack, told the men to
back off. He explained that Mr. Clay probably got cut in the
face while Mr. Heath was defending himself against the
attack. Mr. Heath said that he intended to cut Mr.
Malenski's deltoid muscle and that would have prevented
Mr. Malenski from raising his arms. Mr. Heath stated that he
was "merely trying to 'disable'" Mr.
Malenski. Unfortunately, according to Mr. Heath, Mr. Malenski
lunged forward causing Mr. Heath to accidentally cut Mr.
Malenski's neck instead of his shoulder.
Mr. Clay's and Mr. Heath's stories diverged, it is
undisputed that Mr. Heath cut Mr. Clay's face and Mr.
Malenski's throat. Furthermore, it is uncontested that
during the confrontation, Mr. Heath cut one of Mr.
Malenski's arteries, which resulted in his death. Mr.
Heath was tried in the Circuit Court for Baltimore City for
the first-degree murder of Mr. Malenski, the attempted
first-degree murder of Mr. Clay, and other related charges.
The substantive issue at trial was whether Mr. Heath acted
with criminal intent or in self-defense.
Heath did not testify at trial, so his version of the events
was established by way of a recorded statement that he gave
to the police during an interview on September 27, 2014.
Prior to trial, and without the trial court's
involvement, the parties entered into a stipulation and
agreed to various redactions of Mr. Heath's statement to
police. The redacted portions of the statement
related to Mr. Heath's selling of drugs as his primary
source of income.
her opening statement at trial, Mr. Heath's counsel made
the following comment about Mr. Heath's purpose for going
Ladies and gentlemen, the young man that sits here [next to
counsel] is Nicholas Heath. And just as the State described
to you in regards to [Mr. Malenski and Mr. Clay], he too
loved music, liked to hang out, had friends, was busy
doing tattoos, that's one of his primary sources of
income in order to pay a lawyer to get his wife from
England to the United States. That was his goal and
that was his purpose to stop by the Ottobar that
night. His friend, Dustin Cunningham says lots of
people there have tattoos or had tattoos, this is a good
State did not object during defense counsel's opening
statement. The State waited until its case-in-chief to
respond to defense counsel's remark in opening that Mr.
Heath was at Ottobar to find clients for his tattoo
business. Citing that remark, the State moved to
unredact a portion of Mr. Heath's statement to the
police, in which he said that he went to Ottobar intending to
sell "white." Specifically, the State sought to
unredact and admit into evidence the following portion of Mr.
I mean look at nobody's being violent man. Nobody's
went in there starting trouble. I went in there to
sit down to sell a got damn bit of white that they,
I'm just trying to make a fucking living. And everybody
around me is gotta act like an asshole. That's
all I wanted to do. You know am I wrong? Yeah.
(Emphasis added). The State argued that defense counsel's
remark, that Mr. Heath went to Ottobar for purposes related
to his tattoo business, contradicted Mr. Heath's
statement to the police and opened the door to Mr.
Heath's "true" purpose for being at Ottobar,
his intent to sell "white." Defense counsel argued that
opening statements are not evidence. Furthermore, according
to defense counsel, regardless of the opening the door
doctrine, the portion of the statement offered by the State
was inadmissible bad acts evidence. Defense counsel asserted
that Mr. Heath's statement was "highly prejudicial
[with] no probative [value]" and therefore should not be
trial court weighed the probative value and prejudicial
effect of the contested portion of Mr. Heath's statement
and reasoned that Mr. Heath's explanation for "being
present [at Ottobar] . . ." was probative of "the
manner in which he is alleged to have conducted himself that
evening." The trial judge expressed that he "would
not have stricken that testimony, although some of the things
which have been read, not everything would appear to be fully
admissible even under the probative greater than prejudicial
[sic] value of standard." Ultimately, the trial court
"permit[ted] the State to unredact the testimony with
regard to [Mr. Heath's] statement as to why he was there
that night with regard to certain business operations."
the trial court's ruling, defense counsel requested, and
was granted, a continuing objection to references to Mr.
Heath's involvement in the "possession and
distribution of controlled dangerous substances[.]"
Additionally, the prosecutor clarified that the trial
judge's ruling was limited to the portion of Mr.
Heath's statement in which he says that he went to
Ottobar intending to sell "white," and "that
the rest of the references to [Mr. Heath] selling drugs is
not probative[.]" The trial judge said,
"Right." He explained that other references to
selling drugs in Mr. Heath's statement to the police are
"beyond the pale . . . it's relevant only to that
night and [Mr. Heath's] presence at Ottobar."
in the trial, Mr. Heath's statement to the police,
including the portion in which he said that he went to
Ottobar intending to sell "white," was admitted
into evidence over defense counsel's objection. A
recording of Mr. Heath's statement was played in open
court for the jury. Mr. Heath did not offer any evidence
tending to establish that he visited Ottobar for reasons
related to his tattoo business, or for any other reason.
Ultimately, the jury returned a verdict against Mr. Heath of
guilty to involuntary manslaughter and second-degree assault.
Heath appealed his convictions to the Court of Special
Appeals. In an unreported opinion, our intermediate appellate
court reversed the trial court's ruling that the door had
been opened. Heath v. State, No. 2736, Sept. Term
2015, 2018 WL 3085156, at *6 (Md. Ct. Spec. App. June 21,
2018). First, the intermediate appellate court held that Mr.
Heath's statement that he went to Ottobar to sell
"white" constituted inadmissible bad acts evidence
pursuant to Md. Rule 5-404. Id. at *8-11.
Additionally, the court determined that Mr. Heath's
counsel did not open the door during her opening statement.
Id. at *13. Alternatively, the court reasoned that,
"[a]ssuming arguendo that [Mr. Heath's]
counsel had 'opened the door,' the remedy -
permitting the prior acts statement to come in - was not
proportionate to the malady - impugning [Mr. Heath's]
character in the eyes of the jury." Id.
Ultimately, the Court of Special Appeals held that the trial
court's error in allowing the statement into evidence was
not harmless and therefore reversed and remanded the case for
a new trial. Id. at *7.
State petitioned this Court for a writ of certiorari
and we granted the petition. State v. Heath, 461 Md.
458, 193 A.3d 208 (2018). We now review whether the trial
court erred when it determined that defense counsel opened
the door to admitting the defendant's previously redacted
statement based upon a comment made in her opening statement
and, if so, whether admitting the defendant's statement
in response was legal error and an abuse of
preliminary matter, the parties ask us to define the standard
for reviewing whether a party has opened the door to the
admissibility of responsive evidence. The State requests that
we review this case as an application of the opening the door
doctrine. Mr. Heath, on the other hand, argues that the
opening the door doctrine is not applicable here. In
addition, the State asserts that we should reverse the Court
of Special Appeals on the basis that the trial court did not
abuse its discretion when it admitted into evidence Mr.
Heath's statement regarding his intent to sell
"white" at Ottobar. The State contends that the
admission of Mr. Heath's statement was a proportional
response to defense counsel's opening statement regarding
Mr. Heath's intent to find tattoo clients at Ottobar. Mr.
Heath argues, however, that even if the door was opened, Md.
Rule 5-404 prohibits the admission of the rebuttal evidence
that the State offered.
that the general principles of the opening the door doctrine
that allow a party "to meet fire with fire"
permitted the trial judge to consider whether to admit into
evidence Mr. Heath's statement that he intended to sell
"white" at Ottobar. The trial judge, however,
failed to recognize that Mr. Heath's intention to sell
drugs at Ottobar injected into the case evidence on a
collateral issue. The introduction of a collateral issue and
the evidence offered on that issue had nothing to do with the
underlying criminal charges and exceeded one of the
limitations to the introduction of responsive evidence under
the "opening the door" doctrine.
limitation under the "opening the door" doctrine is
proportionality. Terry v. State, 332 Md. 329, 338,
631 A.2d 424, 428 (1993) (."[T]he remedy must be
proportionate to the malady."). The responsive evidence
permitted by the trial judge was disproportionate because the
jury would likely give more weight to a statement admitted
into evidence than to a comment made in opening. This
disproportionality stems from the instructions given to the
jury. Specifically, the trial judge instructed the jury to
make its decision based solely on the evidence admitted and
not on what was said in opening statements.
of whether the statement was a proportionate response,
allowing the State to admit Mr. Heath's statement into
evidence was substantially more prejudicial than probative
under Md. Rule 5-403 and should not have been received.
Clearly, the statement was unfairly prejudicial in that it
associated Mr. Heath with drugs and likely undermined his
credibility with the jury. The jury had to evaluate Mr.
Heath's version of what occurred at Ottobar on the
evening of September 25, 2014, and his theory of
the unfair prejudicial impact that Mr. Heath's statement
had on his credibility, and how that likely affected the
jury's perception of him, we cannot say beyond a
reasonable doubt that the jury's verdict was in no way
influenced by the responsive evidence. In admitting the
evidence, the trial judge risked the jury finding Mr. Heath
guilty based on the inference that Mr. Heath was "up to
no good." Therefore, the statement's admission at
trial was not harmless error and Mr. Heath is entitled to a
standard for reviewing whether the opening the door doctrine
yields to the admissibility of evidence offered at trial was
thoroughly reviewed in this Court's recent decision,
State v. Robertson, 463 Md. 342, 352-58, 205 A.3d
995, 1000-1004 (2019). The framework for review is a familiar
one. See id. Whether an opening the door doctrine
analysis has been triggered is a matter of relevancy, which
this Court reviews de novo. Id. at 353, 205
A.3d at 1001. A trial court does not have discretion to admit
irrelevant evidence. State v. Simms, 420 Md. 705,
724-25, 25 A.3d 144, 155 (2011) ("The de novo
standard of review is applicable to the trial judge's
conclusion of law that the evidence at issue is or is not of
consequence to the determination of the action.")
(quoting Parker v. State, 408 Md. 428, 437, 970 A.2d
320, 325 (2009) (cleaned up).
responsive evidence was properly admitted into evidence is
reviewed for an abuse of discretion. Robertson, 463
Md. at 358; 205 A.3d at 1004; Simms, 420 Md. at 725,
25 A.3d at 156 ("whether the evidence is inadmissible
because its probative value is outweighed by the danger of
unfair prejudice . . . is  tested for abuse of 
discretion."). Additionally, an error is harmless if a
reviewing court can say, after an independent review of the
record, that beyond a reasonable doubt, the error in no way
influenced the verdict. Dorsey v. State, 276 Md.
638, 659, 350 A.2d 665, 678 (1976). This Court has held that
an "[a]buse of discretion exists where no reasonable
person would take the view adopted by the trial court, or
when the court ...