898 A.2d 419 (Md. 2006), 49, Kelly v. State

Docket Nº:49
Citation:898 A.2d 419, 392 Md. 511
Opinion Judge:CATHELL, J.
Party Name:Francesco A. KELLY v. STATE of Maryland.
Attorney:Nancy S. Forster, Public Defender, Baltimore, for petitioner., Gregory D'Alesandro, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of Maryland, Baltimore), on brief, for respondent.
Case Date:May 08, 2006
Court:Court of Appeals of Maryland

Page 419

898 A.2d 419 (Md. 2006)

392 Md. 511

Francesco A. KELLY


STATE of Maryland.

No. 49

Court of Appeals of Maryland

May 8, 2006

Page 420

[Copyrighted Material Omitted]

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Nancy S. Forster, Public Defender, Baltimore, for petitioner.

Gregory D'Alesandro, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of Maryland, Baltimore), on brief, for respondent.


Cathell, J.

Francesco Alexjandre Kelly, petitioner, was convicted by a jury in the Circuit Court for Montgomery County on May 22, 2003, of two counts each of attempted first degree murder, 1 attempted second degree murder, 2 first degree assault, 3 and use of a handgun in the commission of a felony or a crime of violence.4 He was sentenced to twenty-five years for the first count of attempted first degree murder, a consecutive ten years for the second count of attempted first degree murder, and a consecutive five years for the first count of use of a handgun in the commission of a felony or a crime of violence (to run concurrently with five years for the second count of use of a handgun in the commission of a felony or a crime of violence), for a total of forty years imprisonment.5

The Court of Special Appeals affirmed the convictions. Kelly v. State, 162 Md.App. 122, 873 A.2d 434 (2005). Petitioner filed a petition for writ of certiorari on

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June 15, 2005. We granted certiorari on August 10, 2005. Kelly v. State, 388 Md. 404, 879 A.2d 1086 (2005). The following questions are presented for our review:

I. Whether the right to be present at every stage is violated by exclusion of the defendant from an evidentiary hearing when, although evidence is not taken in the traditional sense, the court's ruling is based on the State's proffer6 of facts not previously in evidence and, thus, the proceeding is not a conference or argument on a question of law?

II. Whether the right to present a defense is violated when the court, without justification, and as a predicate to permitting an available witness to take the stand, requires the defense to proffer, in the State's presence, the content and theory of admissibility of the witness's testimony?"

We hold that the trial court abused its discretion when it refused to allow the petitioner to present his witnesses. Because the answer to the second question requires that petitioner be granted a new trial, we shall not address the first question presented.

I. Facts

The Court of Special Appeals provided the following account of the events that led to these proceedings:

"The tragic events of this case began to unfold around 11:00 p.m. on October 31, 2002. At that time, Ibrahim Sidibe, his fiancee, Melissa Wainwright, and Sidibe's best friend, Nicholas Watson, were riding together on a public transit bus. They were on their way home from City Place Mall, in Silver Spring, Maryland, where Sidibe had been performing as the character Spiderman at a children's Halloween party.

"During the bus ride, Wainwright noticed [petitioner] seated across from them, wearing headphones and 'bobbing his head up and down,' evidently in time with the music. Wainwright made a remark about [petitioner] that caused Watson and others on the bus to laugh. [Petitioner] responded with a derogatorycomment

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about Wainwright, precipitating an angry exchange between Watson and [petitioner]. The episode ended within a minute and a half, without further trouble at that time. "Shortly thereafter, Sidibe, Wainwright, and Watson got off the bus at the stop in front of a 7-Eleven Store in the White Oak area of Silver Spring. [Petitioner] remained on the bus, but he and Watson made 'eye contact' as Watson left the bus.

"The three friends went into the 7-Eleven to get something to eat and drink, then returned to the bus stop to await the arrival of the next bus. Sidibe was wearing his headphones and stood about 12 to 15 feet away from Watson and Wainwright. After ten minutes or so, Wainwright and Watson heard a gun shot.

"Wainwright, who was six months pregnant at the time, turned and recognized the shooter as the person about whom she had made the comment on the bus. She took off running in the direction of the 7-Eleven, hearing additional gun shots as she ran. Wainwright fell twice in her efforts to get to the store, but was able to reach it and get inside without being injured.

"Watson did not immediately flee upon hearing the gun shot. Instead, he turned in the direction of Sidibe in time to see him fall to the ground. Watson saw a 'shadowy figure' standing above Sidibe and pointing a gun directly at Sidibe. The figure lifted his head and pointed the weapon at Watson. Watson saw that it was 'the kid from the bus,' i.e., [petitioner].

"Watson took off running toward the 7-Eleven. [Petitioner] fired at Watson as he ran, shooting him six times, once each in the arm, the back of his head, the right buttock, the right middle finger, the shoulder, and the chest. Watson was able to reach the store, and urged the store clerk to call the police or an ambulance. The police and emergency medical personnel arrived shortly thereafter.

"Watson and Wainwright described the shooter to the police. The description was broadcasted to officers in the area. Shortly thereafter, the police stopped [petitioner] at a location about a mile from the scene of the shooting. The police transported Wainwright to that location for a show-up. Wainwright identified [petitioner] as the shooter. [Petitioner] was then arrested and taken to the police station.

"At the hospital several hours after the shooting and after emerging from surgery, Watson was shown a photographic array that included a photograph of [petitioner] taken earlier that night at the police station. Watson selected [petitioner]'s photograph as depicting the shooter.

"Sidibe, who was paralyzed as a result of the shooting, was able to testify about the events on the bus and before the shooting, but was unable to describe the shooter or testify in detail about the shooting itself. He did testify, however, that he had been shot in the forehead, and injured his neck when he fell to the ground.

"Both Watson and Wainwright identified [petitioner] at trial as the person who had been on the bus with them and later shot Watson and Sidibe."

Kelly, 162 Md.App. at 127-29, 873 A.2d at 436-37. During trial, the State presented, without the court requiring a prior proffer of each witness's testimony, testimony from twelve witnesses, one of whom testified through a videotaped deposition. At the close of the State's case, the court sent the jury on a fifteen minute recess. Petitioner

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then moved for judgment of acquittal and the court denied the motion. The court asked whether petitioner's witnesses were ready. Petitioner's counsel stated that she planned to call two witnesses. The first witness she had planned to call was Officer Patel, who had been subpoenaed and was somewhere in the building ready to be paged when needed. The second witness was Officer Wells, whom petitioner's counsel had unsuccessfully attempted to serve with a subpoena.

The State initially objected to Officer Patel as a witness only because the petitioner's counsel had not included the officer on the witness list presented to the jury. The court stated that the witness list issue could be resolved after it was determined where the witnesses were. At that time, petitioner's counsel and the court discussed Officer Wells's testimony:

"[Petitioner's counsel]: . . . I really want to call Officer Wells and I want to call Officer Patel, but those are my two primary witnesses that I want to call for very specific reasons.

. . .

THE COURT: Do you know anything about Wells, whether he is or--

[State]: No.

THE COURT: – isn't available?

[State]: No. He is not someone that, from my understanding, has any--

THE COURT: What does Wells--

[State]: --direct bearing.

THE COURT: --proffer to me what his . . .

[Petitioner's counsel]: He responded to the scene of the crime and did a number of interviews with other eyewitnesses.

THE COURT: Who have testified?

[State]: No.

[Petitioner's counsel]: Well, I have his notes--

THE COURT: But I am asking you--

[Petitioner's counsel]: --I don't have witness statements signed by them. I have notes from his part of the investigation, saying who he talked to and what they said.

THE COURT: But how would that be admissible unless those persons are also available, because what they said would be hearsay wouldn't it?

[Petitioner's counsel]: Well, it would be hearsay, just like the description of my client is hearsay and came in all through the trial.

THE COURT: But does it recognize the exception--

[State]: That's right.

THE COURT: --as we have discussed with that?

[Petitioner's counsel]: Right, because they actually arrested him, but I think I am entitled to show that they had other information that they didn't follow up on, particularly since some of it would refute the validity of the description given that led to my client.

THE COURT: But, one, that would assume that Wells did or didn't follow up on it; and two, it would assume that Wells didn't give the information to anybody else and that nobody else followed up on it and that Wells would know whether or not somebody else did or didn't follow up on it. He is not the lead investigator.

[Petitioner's counsel]: No, and the lead investigator said he didn't follow up on anything. So we know that.

[State]: That is not true.

[Petitioner's counsel]: He said he didn't follow up on any other witness information, is what he said."

The court then gave petitioner's counsel the remainder of the recess to determine the

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status of the witnesses.7 When the court reconvened, Officer Patel was present and was told to wait outside of the...

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