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State v. Jones

Court of Appeals of Maryland

August 28, 2019

STATE of Maryland
Hassan Emmanuel JONES

          Reconsideration Denied October 8, 2019

Page 908

          Circuit Court for Baltimore County, Case No. 03-K-15-005488, Paul J. Hanley, Judge.

         Argued by Jessica V. Carter, Asst. Atty. Gen. (Brian E. Frosh, Attorney General of Maryland, Baltimore, MD), on brief, for Petitioner.

         Argued by Michael R. Braudes, Assistant Public Defender (Paul B. DeWolfe, Public Defender of Maryland, Baltimore, MD), on brief, for Respondent.

         Argued before: Barbera, C.J.,[*] Greene, McDonald, Watts, Hotten, Getty, Alan M. Wilner (Senior Judge, Specially Assigned) JJ.


         Barbera, C.J.

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          [466 Md. 145] We are presented here with an opportunity to reconsider Maryland’s common law accomplice corroboration rule, which requires that accomplice testimony be independently verified to sustain a conviction. For reasons that follow, we abrogate the rule and hold that the jury, after proper instruction about the possible unreliability of accomplice testimony, is entitled to weigh the sufficiency of such evidence without the need for independent corroboration. First, though, we must apply the current accomplice corroboration rule to resolve the present case. In doing so, we affirm the judgment of the Court of Special Appeals, which overturned Respondent’s conviction [466 Md. 146] based on the lack of independent evidence that would corroborate the accomplice testimony.


          Facts and Procedural History

          A. The Underlying Incident.

          Around 4:30 a.m. on August 9, 2015, Sandeep Bhulai’s body was discovered lying next to his vehicle, which was idling with the doors ajar. Mr. Bhulai had been shot multiple times— once in the head, once in the neck, once in the chest, once in the left elbow, and twice in the left arm. The police found 9-millimeter and .380 caliber cartridge casings surrounding Mr. Bhulai. The police collected fingerprints from Mr. Bhulai’s vehicle and a motor scooter that was found near the scene.

         The investigation led police to six suspects: (1) Christian Tyson; (2) Keith Harrison; (3) Kareem Riley; (4) Ramart Wilson; (5) Michael Jobes; and (6) Hassan Jones, Respondent here. Fingerprints from Harrison, Riley, Wilson, and Tyson were discovered at the crime scene. Later that summer, police arrested Harrison for marijuana possession and found a .380 caliber handgun that matched the one used in Mr. Bhulai’s murder. After interviewing a few of the suspects who implicated Jobes, police executed a search warrant on Jobes’s home and found Mr. Bhulai’s cell phone. Cell phone locational data placed phones related to all the suspects, except Respondent and Tyson, near the scene of the murder on the night in question. Respondent was implicated solely by the accounts of Tyson, Riley, and Wilson. Wilson identified Respondent in a photograph, which was allegedly taken on the night of the murder, by writing Respondent’s nickname, "Teefy," in front of Respondent’s image.[1]

         [466 Md. 147] B. Respondent’s Arrest and Trial.

          On September 10, 2015, police arrested Respondent. Respondent initially denied having a nickname, cell phone, and any knowledge of the crime or the other five suspects. After Respondent’s cell phone number was discovered in Jobes’s phone and vice versa, Respondent conceded that he had a cell phone and had the nickname "Teefy; " yet Respondent continued to deny that he knew Jobes. Respondent was later charged with first- and second-degree

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murder, first-degree felony murder, use of a firearm during a violent crime, conspiracy to commit armed carjacking, and armed robbery.

          At Respondent’s trial, Tyson, Riley, and Wilson testified pursuant to plea agreements. Their testimony was consistent and demonstrated that the group, including Respondent, attended a party in Reisterstown and then an "after party" in Woodlawn on the night of the murder starting sometime around 9 p.m. The State entered into evidence a photograph that Wilson testified was taken on his cell phone sometime between 12:30 a.m. and 1:40 a.m. and depicted Wilson, Respondent, and the rest of the group. Wilson testified that after leaving the party, the group agreed to go to Middle River to steal something. When they reached a residential area, the group split up. Wilson further testified that he, Riley, and Harrison attempted to steal a motor scooter, but they were unable to trigger the ignition. Wilson then helped Riley return to Riley’s car because he was "very intoxicated." Meanwhile, Harrison left to reconnect with the others.

          Mr. Bhulai was killed between 3:00 and 3:15 a.m. Tyson testified about the murder. He said that the group, including Respondent, forced Mr. Bhulai out of his car at gunpoint. While holding Mr. Bhulai at gunpoint, Tyson took Mr. Bhulai’s cell phone. Jobes, Harrison, and Respondent then shot Mr. Bhulai multiple times. Immediately after the shooting, Jobes took Mr. Bhulai’s wallet, and the group fled to Riley’s car.

          Riley and Wilson, who remained in Riley’s car during the murder, both testified that they heard gunshots. Shortly thereafter, the group returned and Harrison, Jobes, and Respondent [466 Md. 148] were all carrying handguns. According to Riley’s testimony, Respondent told him to "hurry up and get us away from here, we just shot someone."

          In addition to the accomplices’ testimony, the State presented testimony from detectives and forensic experts and offered physical evidence. Although that evidence "generally corroborated" the accomplices’ testimony regarding their "movements and activities that evening," none of the physical evidence (i.e., locational data and fingerprints) directly implicated Respondent.

          After the State closed its case, Respondent moved for a judgment of acquittal on all charges, arguing that the accomplices’ testimony was not corroborated. The court denied the motion, ruling that the photograph on Wilson’s phone served as independent corroboration. Respondent did not put on a defense case.

          Among other instructions, the court instructed the jury that the accomplice testimony must be independently corroborated. The court read pattern instruction MPJI-3:1— Testimony of Accomplice— set forth in the Maryland State Bar Standing Committee on Pattern Jury Instructions, see MPJI-Cr 3:11 Testimony of Accomplice, which, with the names added, states:

You have heard testimony from Christian Tyson, Kareem Riley and Ramart Wilson who were accomplices. An accomplice is one who knowingly and voluntarily cooperated with, aided, advised or encouraged another person in the commission of a crime. The Defendant cannot be convicted solely on the uncorroborated testimony of an accomplice. You must first decide whether the testimony of Christian Tyson, Kareem Riley and Ramart Wilson was corroborated before you consider it. Only slight corroboration is required. This means there must be some evidence which you believe in addition to the testimony of Christian Tyson, Kareem Riley and Ramart Wilson that shows either, one, that the Defendant committed the crime charged; or two, that the Defendant was

Page 911

with others who committed the crime at or about the time and place the crime was committed.
[466 Md. 149] If you find that the testimony of Christian Tyson, Kareem Riley and Ramart Wilson has been corroborated, you may consider it but you should do so with caution and give it the weight you believe it deserves. If you do not find that the testimony of Christian Tyson, Kareem Riley and Ramart Wilson has been corroborated, you must disregard it and may not consider it as evidence against the Defendant.
You have heard evidence that Christian Tyson, Kareem Riley and Ramart Wilson have pleaded guilty to a crime arising out of the same events for which the Defendant is now on trial. The guilty plea of th[ese] witness[es] must not be considered as evidence against this [D]efendant. You may consider the testimony of a witness who testifies for the State as a result of a plea agreement. However, you should consider such testimony with caution because the testimony may have been influenced by a desire to gain a benefit by testifying against the Defendant.

          Of all the charges, the jury convicted Respondent only of conspiracy to commit armed carjacking. Respondent then moved for a new trial, again asserting that the accomplices’ testimony lacked the requisite independent corroboration. The trial judge again denied the motion and imposed a thirty-year sentence.

          Respondent appealed, and a three-judge panel of the Court of Special Appeals, in an unreported opinion, reversed the judgment of conviction. The court held that the accomplices’ testimony was not independently corroborated by other evidence, leaving the remaining evidence legally insufficient to sustain Respondent’s conviction.

          The panel of the Court of Special Appeals then suggested that this Court might reconsider the accomplice corroboration rule. Judge (now Chief Judge) Fader, writing on behalf of the panel, expressed skepticism that the current rule strikes the "best balance between the potential dangers of accomplice testimony and its potential value." The Court of Special Appeals hinted that this Court should consider adopting a modified version of the common law rule for accomplice testimony, [466 Md. 150] under which the jury would decide how much weight to afford accomplice testimony, guided by a cautionary instruction about the possible unreliability of such testimony.

         The State filed a petition for a writ of certiorari, which we granted. State v. Jones, 461 Md. 612, 196 A.3d 904 (2018). The State poses two questions for our consideration:

(1) Did the Court of Special Appeals err in determining that Jones’s demonstrably false statements exhibiting a consciousness of guilt about Bhulai’s murder were not sufficient to corroborate the accomplices’ testimony and therefore the evidence was not sufficient to convict Jones of conspiracy to commit armed carjacking?
(2) In the alternative, should the accomplice corroboration rule that a person may not be convicted on the uncorroborated testimony of an accomplice be replaced or revised to allow the factfinder to measure the weight of the evidence and judge the credibility of accomplices, with appropriate instruction about accomplice testimony?



         For reasons we shall explain, we hold that the Court of Special Appeals did not

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err in its application of the extant accomplice corroboration rule. We further hold that the rule, as currently structured, be abrogated. In place of that rule, we adopt today a new rule that will no longer require that accomplice testimony be corroborated by independent evidence to sustain a conviction. We do so in exercise of our constitutional authority to change the common law. Harrison v. Montgomery Cty. Bd. of Educ., 295 Md. 442, 459, 456 A.2d 894 (1983). Indeed, "we have never construed [the doctrine of stare decisis ] to inhibit us from changing or modifying a common law rule by judicial decision where we find, in light of changed conditions or increased knowledge, that the rule has become unsound[.]" Id.

         [466 Md. 151] A. Sufficiency of the Evidence of Independent Corroboration?

         We begin with the first question presented— whether the Court of Special Appeals properly applied the current accomplice corroboration rule to the facts of this case.

         The accomplice corroboration rule requires exactly what its name suggests— that the State must present independent corroboration of accomplice testimony to sustain a conviction. See Williams v. State, 364 Md. 160, 179, 771 A.2d 1082 (2001) ("[I]n Maryland ... a conviction may not rest on the uncorroborated testimony of an accomplice[.]"); Collins v. State, 318 Md. 269, 280, 568 A.2d 1 (1990) ("The rule in Maryland [is] that a person accused of a crime may not be convicted based on the uncorroborated testimony of an accomplice[.]"); Lynn McLain, Maryland Practice Series: Maryland Evidence State and Federal § 300:6(b)(ii), at 372-75 (3d ed. 2013). The rationale for the rule, the flaws of which we discuss below, is to combat the possible untrustworthiness of accomplice testimony because accomplices may lie to protect themselves. See Watson v. State, 208 Md. 210, 217, 117 A.2d 549 (1955) (stating that accomplice testimony "should be regarded with great suspicion and caution" because an accomplice may be incentivized to "shield himself from punishment" by blaming another or seek "clemency by turning State’s evidence").

          When reviewing a lower court’s application of the rule, we evaluate whether "the corroborative evidence was legally sufficient to warrant submission of the case to the jury." Wright v. State, 219 Md. 643, 652, 150 A.2d 733 (1959). Our review is limited to ascertaining whether there exists any independent evidence "tending either (1) to identify the accused with the perpetrators of the crime or (2) to show the participation of the accused in the crime itself." Ayers v. State, 335 Md. 602, 638, 645 A.2d 22 (1994) (citation omitted); see also Turner v. State, 294 Md. 640, 646, 452 A.2d 416 (1982) (holding that "evidence offered as corroboration must be independent of the accomplice’s testimony"). The corroborative evidence need only be "slight," but it must establish "either of [those] [466 Md. 152] matters" before accomplice testimony can be submitted to the jury. Ayers, 335 Md. at 638, 645 A.2d 22. Our review is not to be "confuse[d] [with] the admissibility of evidence"; we are not concerned with whether the accomplice testimony is "admissible substantively" but rather whether that evidence, once admitted, is sufficiently corroborated to "sustain a conviction." Turner, 294 Md. at 646, 452 A.2d 416.

          Respondent was convicted of conspiracy to commit armed carjacking, based solely on the accomplices’ testimony. That conviction can be sustained only if there was evidence offered at trial that either connected Respondent to the others who agreed to commit the crime in proximity to the time and place it occurred or showed that he conspired with one or more of

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them to commit that crime. The State insists that such evidence was presented. We disagree.

          When ruling upon the motion for judgment of acquittal at trial, the court relied solely on the group photograph taken on Wilson’s cell phone at the "after party" and, according to Wilson, showed Respondent standing with him and the other accomplices. The court was persuaded that the photograph— State’s Exhibit 106— "place[d] the [Respondent] with the perpetrators of the offense."

         The State argues first that the photograph taken with Wilson’s cell phone and purporting to depict Respondent with the accomplices provided the requisite independent corroborative evidence. According to the State, the photograph shows Respondent’s presence with the other participants earlier on the night of the crime. We agree with the Court of Special Appeals that the photograph "cannot constitute independent corroboration because it depends entirely on Mr. Wilson’s testimony." Jones v. State, No. 1988, 2016 Term, slip op. at 9, 2018 WL 3770206 (Md. Ct. Spec. App. Aug. 8, 2018). This is so because the evidence cannot "pull[ ] itself up by its own bootstraps," meaning that the accomplice’s testimony cannot be used to corroborate itself. See Jeandell v. State, 34 Md.App. 108, 112, 366 A.2d 79 (1976); see also [466 Md. 153] Turner, 294 Md. at 647, 452 A.2d 416 ("It would eviscerate the rule to allow an accomplice to corroborate himself.").[2]

         The State’s argument does not rest entirely on State’s Exhibit 106, however, but rather on two additional evidentiary items: Respondent’s cell phone, which contained the contact information of at least two of the accomplices; and Respondent’s post-arrest statements, in which he proffered an alibi and denied knowing the accomplices. The State argues that, taken together, these items constitute circumstantial evidence that Respondent knew when and where the crime had occurred; he was associated with the accomplices when the conspiracy occurred; and he now seeks to distance himself from those facts given his consciousness of guilt. Therefore, the State claims, the Court of Special Appeals erred in failing to consider that Respondent’s false statements to the police sufficiently connected him to the crime and/or the accomplices in proximity to the crime, and thereby corroborated the accomplices’ testimony. See Nolan v. State, 213 Md. 298, 309, 131 A.2d 851 (1957) ("The corroborating evidence ... may consist of ... untruthful statements made by [the accused.]").

         Respondent uttered the allegedly false statements during an interrogation immediately following his arrest. After waiving his Miranda [3] rights, Respondent was questioned about his whereabouts on the night in question. In response to a question about why he was in Essex, Respondent replied, "I wasn’t there ... I was probably asleep or something." Notably, the police had not provided Respondent with any information [466 Md. 154] about the alleged crime. During a subsequent exchange, Respondent denied knowing his accomplices;

Page 914

yet, police found Harrison’s and Jobes’s phone numbers saved in Respondent’s cell phone.

         The State is correct that "corroborating evidence may be circumstantial and may consist of ... untruthful statements made by [the defendant]." It cannot be overlooked, however, that such evidence and reasonable inferences drawn from it must either connect Respondent to "the commission of the crime," Nolan, 213 Md. at 309, 131 A.2d 851, or place him "with [his accomplices] at about that time," McDowell v. State, 231 Md. 205, 214, 189 A.2d 611 (1963). None of Respondent’s statements "establish either of these matters." Brown v. State, 281 Md. 241, 244, 378 A.2d 1104 (1977). We agree with and cannot improve upon the Court of Special Appeals’ analysis on this point and therefore include it here:

Here, Mr. Jones’s false statement that he did not know his alleged accomplices does not get the State any closer to either of these points. Setting aside for the moment the testimony of the accomplices, nothing more than pure speculation ties Mr. Jones’s denials to the carjacking conspiracy or the accomplices on the evening in question. Mr. Jones’s interview took place more than a month after the murder. At that time, he may have lied for any number of reasons: he may not have wanted to be associated with individuals who he believed were involved with criminal activity or who had already been picked up by the police; he may have known one or more of them to be bad actors; he may have engaged in other criminal activity with them; or he may have just distrusted the police. Nothing in the record, other than the accomplices’ testimony, indicates one of these reasons as being any more likely than any of the others.
The State, relying on the Georgia Supreme Court’s decision in Threatt v. State, 293 Ga. 549, 748 S.E.2d 400 (2013), argues that Mr. Jones’s false statements are enough because, even if they do not relate to the specifics of this crime, they show consciousness of guilt. We disagree .... [466 Md. 155] Threatt does not stand for the proposition that consciousness of guilt evidence alone can provide the necessary corroborative testimony ....
Moreover, even if consciousness of guilt were enough by itself, Mr. Jones’s denials do not demonstrate consciousness of guilt of the crime at issue. Consciousness of guilt evidence requires four sequential inferences: "(1) from the defendant’s behavior to [lying]; (2) from the [lying] to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged." State v. Simms, 420 Md. 705, 729, 25 A.3d 144 (2011) (quoting Decker v. State, 408 Md. 631, 642, 971 A.2d 268 (2009)). The circumstances here do not support this inferential chain. Stripped of the testimony of the accomplices, there is nothing more than sheer speculation to tie Mr. Jones’s denial that he knew his alleged accomplices— coming more than a month after the murder— to consciousness of guilt of this crime. See Decker, 408 Md. at 642, 971 A.2d 268 (asserting that each inference requires evidentiary support).
Furthermore, if the accomplice corroboration rule can be defeated by a defendant’s general denial of any knowledge of his alleged accomplices— without tying that in some way to the crime itself or the time and location of the crime— it is difficult to see how the rule would not be rendered meaningless. Corroboration need only be slight, but

Page 915

that does not mean that it can be wholly speculative.

Jones, Op. at 154-57, 216 A.3d at 914-16 (citations omitted) (footnote omitted); see also Thomas v. State, 372 Md. 342, 355-58, 812 A.2d 1050 (2002) (noting that, without physical evidence connecting the defendant to the crime or the crime scene, the defendant’s statement is "too ambiguous and equivocal" to constitute consciousness of guilt evidence).

         Put simply, the inferences drawn by the State here are mere conjecture given the record before us, and, as the Court of Special Appeals aptly stated, "[c]orroboration need only be [466 Md. 156] slight, but that does not mean that it can be wholly speculative."[4] Jones, Op. at 155, 216 A.3d at 915. Accordingly, we hold that the State failed to corroborate the accomplices’ testimony. Without that testimony, it follows that the State did not provide legally sufficient evidence to support Respondent’s conviction of conspiracy to commit armed carjacking. We therefore affirm the judgment of the Court of Special Appeals reversing Respondent’s conviction.

         Having resolved the State’s first question, we turn next to the State’s request that we jettison the accomplice corroboration rule in favor of the common law rule that allowed defendants to be convicted based solely on the testimony of an accomplice. See Luery v. State, 116 Md. 284, 292 (1911) ("It is true that at common law a verdict of the jury would not be set [466 Md. 157] aside merely because [it was] founded on the evidence of an accomplice which was not corroborated[.]").

          B. Abrogation of the Accomplice Corroboration Rule.

          We begin with a bit of history found in VII John H. Wigmore, Wigmore on Evidence: Evidence in Trials at Common Law, § 2056 (Chadbourn rev. 1978). According to that treatise, concerns regarding accomplice testimony have existed since at least the 1600s. Id. § 2056, at 405. By the end of the 1700s, English courts had developed "a general practice ... to discourage a conviction

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founded solely upon the testimony of an [uncorroborated accomplice]." Id. This practice was not a rule of law that bound the jury, but instead, "a mere exercise of [the judge’s] common-law function of advising the jury upon the weight of the evidence." Id. The actual rule of law regarding accomplice testimony was uncontroverted— convictions based solely on accomplice testimony were legally sufficient. Id. § 2056, at 407 ("the judges are unanimously of the opinion that an accomplice alone is a competent witness, and that if the jury, weighing the probability of his testimony, think him worthy of belief, a conviction supported by such testimony alone is perfectly legal." (quoting R. v. Atwood and Robbins (1788), 1 Leach Cr. L. 464, 465 (4th ed. 1815))).

          Courts in the United States followed suit and counseled juries to exercise caution when evaluating the reliability of accomplice testimony. Id. § 2056, at 407-08. Then, as described in Wigmore, "in a misguided moment[,] the orthodox function of the judge to assist the jury on matters of fact was (except in a few jurisdictions) eradicated from our system." Id. § 2056, at 416. Because judges could no longer assist the jury, "[t]he makers of this innovation upon established trial methods were thus obliged to turn into a rule of law the ...

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